Balkinization: The Supreme Court as the Aristocratic Element of a Mixed Regime

The Supreme Court as the Aristocratic Element of a Mixed Regime

Guest Blogger

For the symposium on Neal Devins and Lawrence Baum's new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).

John O. McGinnis

In The Company They Keep: How Partisan Divisions Came to the Supreme Court, Neal Devins and Lawrence Baum provide a compelling, elegant, and permanent addition to the political science of the Court. In their view, the Court is substantially more influenced by elite than by popular opinion. The great strength of their book flows from arguments supported by both theory and empirics.

Theoretically, they provide strong reasons based in the psychological literature to show that the justices, like others, are motivated to maintain the approval of those they consider peers and allies. Moreover, the justices have little reason to pay much attention to popular views, because ordinary people do not have much understanding of what the Supreme Court does and even their limited understanding does not much affect the long-term popular assessment of the Court. Thus, the justices do not generally need to pay attention to popular opinion to preserve the Court's political standing. The authors then turn to the evidence in Court decisions, showing that over a range of cases, particularly those in civil liberties, that Court majorities have hewed much closer to the views of elites than of the people as whole.

The authors frame their thesis as a necessary corrective to claims, like that made in Barry Friedman’s The Will of the Majority, that justices generally follow popular opinion, and theirs is indeed a much more persuasive explanation of the wellsprings of the justices’ behavior. It is also a challenge, although the authors do not treat it as such, to the idea that popular social movements are the engine of constitutional jurisprudence. There are many social policy movements—such as the Tea Party, Occupy Wall Street, and those favoring homosexual rights, gun rights, or the elimination of the death penalty. Others social movements, like those for the right-to-life and for abortion rights, directly conflict. Elites determine which movement’s ideas to turn into Supreme Court doctrine.

The authors then marry this general analytic framework for the justices’ behavior with the particular political reality of our time: increased polarization, particularly among elites. If justices respond to the views of their particular network of elites and those different elites have become more extreme and opposed in their beliefs, their divisions will come to envelop the Supreme Court. Hence the subtitle of the book.

This subsidiary thesis also helps clarify why Republican Presidents from Richard Nixon to George H.W. Bush had limited success in moving the Court to the right. As the authors demonstrate, during most of that time the legal establishment was relatively unified and leaned to the moderate left. Thus, it was not surprising that so many of the Republican justices drifted leftward during their tenure, sometimes dramatically as in the case of Justice Harry Blackmun. I would add that the difficulty of bucking the legal establishment is not a new phenomenon. In the early 1800s, twenty-four years of Democratic Republican control of the Presidency did not much change the Federalist orientation of the Supreme Court, given the Federalist tilt to the elite bar of that era. Thomas Jefferson no less than conservative Republicans of recent decades lamented the revolution that wasn’t.

As persuasive as is the book, its account could be richer if the authors did not have such a thin view of the content of law. While they frequently and correctly point out that the justices of the Court do not act like partisan members of Congress, because they pay attention to the law, they do not give any substantial description of what law is, particularly as it relates to interpreting the Constitution. The authors in fact refer to the justices’ “ideology” throughout the book, almost never to their jurisprudence. They make relatively few references, for instance, to originalism, although the rise of originalism marks a significant change in jurisprudential theory both on and off the Court during the prime period for their analysis (from the Warren Court to the present day).

It is an odd slight, particularly because a deeper discussion of jurisprudence could be used to support their basic thesis, round out their narrative on the rise of ideological divisions, and provide fuller content to their claim that a divided Court does not resemble a divided Congress. First, a focus on jurisprudence confirms their view that justices respond to elites. Legal elites can have a jurisprudence, but the vast majority of the people never do. And the justices appointed by Republican Presidents are increasingly distinguished by their embrace of originalism. This development is obvious in the case of Justices Antonin Scalia, Clarence Thomas, and Neil Gorsuch. But as I have argued elsewhere Chief Justice John Roberts and Justice Samuel Alito have pretty strong originalist tendencies. [1] Even if these latter justices respect precedent more, they follow originalism in cases of first impression, as in NLRB v. Noel Canning, and use the original meaning as a regulative ideal doctrinally, as in Free Enterprise v. PCOB, to cut back on non-originalist precedent.

Second, originalism helps explain the divergences of many Republican justices from conservative or Republican ideology, showing that the tug of jurisprudence can pull justices away from the political ideology of the politicians of the party that appointed them and toward results favored by justices appointed by the opposite party. In areas of criminal law, notably in cases concerning the Confrontation and Trial by Jury Clauses, Justices Scalia and Thomas sided with criminal defendants, because they have accepted expansive originalist arguments. Justice Gorsuch is already showing signs of following them. And a focus on originalism suggests that some of the disagreements on the Court are not policy differences rooted in ideology, but legal differences rooted in jurisprudence. Scalia’s harsh comparison of Justice Kennedy's opinion in Obergefell with a fortune cookie, noted by the authors, was a complaint about Kennedy's abnegation of jurisprudential formalism, not about the substantive issue of same-sex marriage.

Originalism also helps explain why and how the modern divisions came to the Court. Most Presidents do not articulate a jurisprudence. A few, like Thomas Jefferson, Franklin Delano Roosevelt, and Ronald Reagan, do. By combining political heft with an interest in changing the fundamentals of the law, rather than just decisions they may dislike, these Presidents began a process of reorienting constitutional law as law, perhaps even shifting its rule of recognition.

The Federalist Society’s crucial influence, which the authors rightly put front and center in the story of today’s transformation of the Court, is also largely a jurisprudential story. The Federalist Society created a counter-establishment that broke up the relative unity of the legal elite, but it cast its opposition in term of legal ideas, not in political ideology or partisanship. Not only are Society’s principles jurisprudential, its members, ranging ideologically from social conservatives to pure libertarians, often disagree sharply on policy. And members of the Society rose up against the Harriet Miers nomination, not because of suspicion of her ideology (she was by all accounts a conservative Republican), but because she had no jurisprudential track record. Thus, the crucial mechanism by which legal change came to the Court was jurisprudential.

This book’s central thesis not only has significant implications for the political science of the Court, but also for the description of the United States’ political regime—a point which the authors might have done more to underscore. If the Supreme Court is an elite largely influenced by elites, the United States is not a democracy in the classical Aristotelean sense, but a mixed regime where aristocrats and plebes both participate in governance. Today’s elites do not generally possess substantial land or other forms of fixed wealth. Instead, in our meritocratic society the elite is defined by high I.Q. and distinguished educational and career performance. And the Court today perfectly represents that aristocracy, given that all its members attended either Harvard or Yale Law School. That description may be difficult to accept for a nation whose self-image is politically egalitarian, even populist. Nevertheless, it captures an uncomfortable and essential truth about the judicial branch that this excellent book makes impossible to deny.

John O. McGinnis is George C. Dix Professor in Constitutional Law at Northwestern-Pritzker School of Law. You can reach him by e-mail at j-mcginnis at law.northwestern.edu

[1] https://www.lawliberty.org/2018/10/16/why-law-students-need-to-learn-more-about-originalism/

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