Wednesday, April 24, 2019

Census Sensibility: The narrowest, and simplest, way for the Court to resolve the census/citizenship case

Marty Lederman

The Supreme Court heard argument yesterday in No. 18-966, Department of Commerce v. New York, a case challenging Commerce Secretary Wilbur Ross's decision to add a citizenship question to the 2020 census form.  Ross explained that he added the question, notwithstanding the fact that it would depress the response rate on the census, in order to provide the Department of Justice with more complete data to aid its enforcement of Second 2 of the the Voting Rights Act of 1965 (even though, as everyone knows, the Trump DOJ is uninterested in enforcing Section 2).

The principal basis for the plaintiffs' challenge is that Ross's decision was arbitrary and capricious, in violation of Section 706(2)(A) of the Administrative Procedure Act.  Most of the briefing and the oral argument in the case has been consumed by questions regarding the reasonableness (or arbitrariness) of Ross's assessments on both "ends" of the cost/benefit balance he purported to strike:  (i) his conclusion that adding the citizenship question might not result in a substantial undercount of residents; and (ii) his conclusion that adding the citizenship question would provide DOJ with more and better data for VRA enforcement, even though the record evidence was virtually uncontradicted, and confirmed by the Census Bureau itself, that adding the question actually would, on the whole, impede the government's ability to accurately assess citizenship information for VRA purposes (see the ACLU Br. at 35-40 for the reasons why that's so).

In my view the plaintiffs, and the district court, have demonstrated why both of these conclusions were arbitrary and capricious.  But with one exception--an argument the government raises for the first time in its reply brief--those particular arguments, which are deeply dependent upon an extensive administrative record, are comprehensively addressed in many excellent briefs filed in the case, and don't need further exposition here.  (The exception is with regard to an argument the SG makes about the first point, i.e., the Secretary's assessment of the possible undercount if he includes a citizenship question on the census form:  In his Reply Brief (see p.14), the SG introduces the idea that the Census Bureau’s “nonresponse follow-up (NRFU) operations would substantially, even if not completely, mitigate any potential undercount as a result of [the anticipated] nonresponses”--in other words, that the increased nonresponse rate will not result in a substantial undercount.  The district court found that the evidence was to the contrary, however (see para. 235); and, more to the point, Secretary Ross did not rely upon any such “NRFU mitigation” theory as part of the basis for his decision.) 

The point I'd like to stress here is simpler, and more straightforward:

Even if the Justices are unsure about those two matters--or if some of them are inclined to think that Secretary Ross's assessments of those two empirical questions were reasonable--the Solicitor General's reply brief reveals why the Secretary's decision was nevertheless arbitrary and capricious.

As the SG notes, Ross's decision purported to be the result of a cost-benefit analysis--weighing the harm of an undercount against the purported benefits of providing DOJ with additional citizenship information.  Ross did not, however, limit himself to those two factors, standing alone; instead, he also considered a third factor--namely, that any undercount would be the result of unlawful conduct by individuals who choose not to submit their census information.  (It's a misdemeanor to refuse to answer questions on the census form.)

Indeed, the SG acknowledges that Ross's consideration of the unlawful nature of census respondents' conduct was decisive in how he struck the balance--it was the very reason he chose to subjugate the harm of the undercount to the alleged benefits of obtaining the citizenship data:  "[T]he Secretary expressly acknowledged the possibility of an undercount," the SG writes in his reply brief (p.10), "yet [he] determined that because it would be the result of unlawful action, it was outweighed by the benefits of providing the Department of Justice (DOJ) more complete and accurate census citizenship data to aid enforcement of the Voting Rights Act of 1965 (VRA)."  Accord id. at 15 ("Weighing these incommensurable factors requires a fundamentally normative policy judgment, and the Secretary explained that he gave greater weight to the benefits, in part because the costs were the result of unlawful conduct.").

By taking into consideration the fact that the undercount would be the result of "unlawful" action--and especially by going so far as to decisively discount the harm of the undercount for that reason--Ross acted arbitrarily and, especially, capriciously.  As New York Solicitor General Barbara Underwood stated in the argument:  "[The Secretary] said he could dismiss or discount any such effect because non-response is an illegal act.  But that is an irrational and impermissible factor to consider on this question."

Exactly so.

Imagine, for instance, that in making a cost-benefit assessment about a possible automotive safety regulation, the National Highway Traffic Safety Administration discounted any safety benefits that would redound to the benefit of people who drive a few miles over the speed limit.  Or that the Food and Drug Administration decided to ignore the safety risks for a population that would foreseeably use a proposed drug unlawfully.  Absent any reason to believe Congress would have intended the agency to account for such factors, it'd be arbitrary and capricious for the agency in question to consider them--let alone to give decisive weight to them--in its assessment.  See Motor Vehicles Manufacturers Ass'n v. State Farm, 463 U.S. 29, 43 (1983) (“Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider . . . ."); see also Train v. NRDC, 421 U.S. 60, 79 (1975) ("[T]he Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of ambient air standards, and which also satisfies that section's other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations if they are part of a plan which satisfies the standards of [the statute]."). 

And there's no such indication of a contrary congressional intent here.  To the contrary, as Justice Kavanaugh affirmed toward the end of the argument, it's a "good first principles point" that the purpose of the census is enumeration.  Congress has not tasked the agency with counting only those residents who comply with the letter of the law--its job is to pursue an “actual Enumeration” of the "whole number of persons in each State,” U.S. Const. art. I, § 2, cl. 3, whether they are law-abiding or not, for the primary purpose of properly "apportioning political representation among the States.”  Wisconsin v. City of New York, 517 U.S. 1, 24 (1996).  See 13 U.S.C. § 141(b) (Secretary shall complete a "tabulation of total population by States"). 

There is nothing in the statute to suggest that the Secretary can, in effect, apply a moral judgment about nonresponders as a basis for discounting the need to include them in the enumeration.  (Moreover, the costs of such discounting would fall largely upon the States and their law-abiding residents who respond to the census.)

It follows, then, that when Secretary Ross chose to discount the harm of the undercount of persons who would choose not to respond to a census that includes a citizenship question--and certainly when he concluded that the undercount harm would be "outweighed by the benefits" of providing DOJ with citizenship data "because it would be the result of unlawful action"--that, in and of itself, rendered his decision "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

And that simple holding is all the Court needs to say in order to resolve this case.

Thoughts on Trump's Effort to Prevent Exposure of his Tax and Business Records

Mark Graber

Over at the ACS Blog

Tuesday, April 23, 2019

The Meaning and Implications of the Mueller Report

Neil Siegel

I have finally finished reading the Mueller Report, slowly and with care. In one sense, the Report is more accessible than its intimidating four-hundred-plus pages may at first appear. The executive summaries of Volumes I and II are short, clear, and illuminating. Before voting in the 2020 primaries or general election, every literate American might consider reading them.

On the other hand, it may be challenging for readers who are not sophisticated lawyers to figure out what is going on in terms of the Report’s bottom lines. The Report repeatedly finds in Volume I that agents of the Russian government interfered in the 2016 election to help elect Donald Trump and further finds that high-level Trump campaign officials applauded and sought to receive Russian help, including in secret, yet the Report concludes that the facts were not sufficient to establish a criminal conspiracy between Russian agents and Trump campaign officials. In addition, Volume II of the Report appears to conclude that, on several occasions, President Trump’s conduct satisfied the three elements of an obstruction of justice offense in violation of federal criminal law—that is, an obstructive act, a nexus to an official proceeding, and corrupt intent—yet the Report declines to expressly conclude that the President obstructed justice.  

With those interpretive difficulties in mind, this Post aims to clarify the meaning and potential implications of the Mueller Report, including whether impeachment is warranted. What follows is long for a blog post, but at least this report on the Mueller Report—this meta-report—is substantially shorter than the Mueller Report itself!
Read more »

Monday, April 22, 2019

Frankfurter’s Conception of Judicial Legitimacy – and Ours

Guest Blogger

Or Bassok

In a recent post, Neil Siegel describes a “major concern expressed during the partisan gerrymandering litigation before the Supreme Court over the past two terms”— “that the Court’s public legitimacy may suffer if it holds that federal courts may adjudicate the merits of political gerrymandering claims.” Siegel identifies this concern with “Justice Frankfurter’s dire predictions about the consequences for the Court’s legitimacy of subjecting malapportioned legislatures to judicial review,” and in particular, Justice Frankfurter’s dissenting opinion in Baker v. Carr.

This reading of Frankfurter is anachronistic. It imposes a contemporary understanding of judicial legitimacy on Frankfurter that he did not share. And the difference between Frankfurter’s understanding of judicial legitimacy in the early 1960s and our contemporary view is quite important.

In order to explain this difference, I track the revisions Frankfurter made to a pivotal sentence (which Siegel quotes) in the various drafts of his dissenting opinion in Baker v. Carr. Frankfurter wrote his dissent just as ideas about judicial legitimacy had begun to shift in the early 1960s. This shift in conceptions of judicial legitimacy has had a profound impact on how people think about the Supreme Court and its authority. At the end of this post, I briefly discuss some of the consequences of this important development.

Like many discussions of the Supreme Court’s legitimacy in recent decades, Siegel’s argument thinks of judicial legitimacy in terms of public support. He treats judicial legitimacy and public legitimacy for the Supreme Court as more or less interchangeable terms. Yet this equation is a recent development; it arose after the invention of public opinion polling that could reliably measure public support for the Supreme Court. Before the invention of this measuring tool, there was no independent source of evidence, considered reliable by all relevant players, of public support for the Supreme Court. As a result, judicial legitimacy could not have been understood in terms of public support, at least as we think of it today.

Before the invention of public opinion polling in the 1930s, the only tool considered reliable for measuring public support was elections. That is not to say that there were no impressionistic assessments of what the public thought of the Supreme Court. Yet, in the absence of public opinion polls, the equation so commonly made today between threats to judicial legitimacy and the decline of public support for the Supreme Court in opinion polls simply didn’t exist. The conceptual move from “judicial legitimacy” to “public legitimacy” to “public support for the Supreme Court in public opinion polls” was not yet possible. In any conflict between the Supreme Court and the elected branches, the President and Congress would rely upon their public support, based on the most recent elections. Except for unusual circumstances, when the Supreme Court itself was at the center of election campaigns, there was no way for the Supreme Court to know, based on a publicly accepted tool of measurement, that it also enjoyed public support.

The entrance of public opinion polls as a reliable metric and — starting in the 1960s — the regular measurement of the confidence of the public in the Supreme Court made public opinion polling an independent criterion of judicial legitimacy. The monopoly of elected institutions on the claim to legitimacy based on public support was broken. For the first time in history, it was now possible to view the Supreme Courts’s legitimacy in terms of public support.

In support of his argument about Frankfurter’s understanding of judicial legitimacy, Siegel quotes the following sentence from Frankfurter’s dissenting opinion in Baker v. Carr: “[t]he Court’s authority — possessed of neither the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction.”  But Frankfurter had a very different idea than the one Siegel attributes to him – as did the other Justices who invoked the concept of “public confidence” in the judiciary before the 1960s.

Read more »

Friday, April 19, 2019

Mueller Report Excerpts: Volume II

Mark Graber

Below is the first of two excerpts of the Mueller Report that will eventually appear in Howard Gillman, Mark A. Graber, Keith W. Whittington, American Constitutionalism (Vol. I): Structures and Powers (Oxford University Press: New York).  The questions are for students, but also for the general public.  

Feel free to circulate, but please only use and quote with proper attribution. And let me know if you are teaching and would like an examination copy of GGW.


Robert S. Mueller, “Report on the Investigation into Russian Interference in the 2016 Presidential Election (Volume II) (2019)

Evidence emerged during the summer and fall of 2016 election that the Russian government was attempting to interfere with the presidential election in the United States.  Russian entities conducted a social media campaign that favored Republican candidate Donald Trump and sought to discredit Democratic candidate Hillary Clinton.  Russian intelligence services hacked the computers of persons involved in the Clinton campaign and, through the intermediary of Wiki-leak, released information damaging to the Democratic Party and Clinton.  Evidence also emerged that links existed between the Russian campaign operation and the Trump campaign.  On May 2007, the Trump administration agreed to appoint Robert S. Mueller III as a special counsel to investigation ‘“the Russian government’s efforts to interfere in the 2016 presidential election,’” including any links or coordination between the Russian government and individuals associated with the Trump campaign.”

Read more »

Mueller Report Excerpt: Volume I

Mark Graber

Below is the first of two excerpts of the Mueller Report that will eventually appear in Howard Gillman, Mark A. Graber, Keith W. Whittington, American Constitutionalism (Vol. I): Structures and Powers (Oxford University Press: New York).  The questions are for students, but also for the general public.  

Feel free to circulate, but please only use and quote with proper attribution. And let me know if you are teaching and would like an examination copy of GGW.


Robert S. Mueller, “Report on the Investigation into Russian Interference in the 2016 Presidential Election (Volume I) (2019)

Evidence emerged during the summer and fall of 2016 election that the Russian government was attempting to interfere with the presidential election in the United States.  Russian entities conducted a social media campaign that favored Republican candidate Donald Trump and sought to discredit Democratic candidate Hillary Clinton.  Russian intelligence services hacked the computers of persons involved in the Clinton campaign and, through the intermediary of Wiki-leak, released information damaging to the Democratic Party and Clinton.  Evidence also emerged that links existed between the Russian campaign operation and the Trump campaign.  On May 2007, the Trump administration agreed to appoint Robert S. Mueller III as a special counsel to investigation ‘“the Russian government’s efforts to interfere in the 2016 presidential election,’” including any links or coordination between the Russian government and individuals associated with the Trump campaign.”

Read more »

Monday, April 15, 2019

Balkinization Symposium on Neal Devins and Lawrence Baum, The Company They Keep-- Collected Posts


Devins and Baum, The Company They Keep
Here are the collected posts for our Balkinization 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).

1. Jack Balkin, Introduction to Balkinization Symposium on Neal Devins and Lawrence Baum, The Company They Keep

2. Richard L. Hasen, Siloed Justices and the Law/Politics Divide

3. Jack Balkin, All Hail Ed Meese!

4. John O. McGinnis, The Supreme Court as the Aristocratic Element of a Mixed Regime

5. Linda Greenhouse, The Company We No Longer Keep

6. Frank Pasquale, The Political Theory of a Balanced Bench

7. Sandy Levinson, Partisan Divisions in the Supreme Court: It's Likely to Get Worse (and There's No Reason to Think that it Will Necessarily Ever Get Better)

8. Mark Graber, Newtonian and Anti-Newtonian Political and Judicial Polarization

9. Rick Pildes, What is Judicial Courage?

10. Neal Devins and Larry Baum, Justices and Their Audiences

Sunday, April 14, 2019

The Congress-centric Case Against Court-Packing

David Super

     A large and increasing chorus of progressive activists, along with some prominent Democratic office-holders and candidates, have called for Democrats to add seats to the Supreme Court after a hypothetical Democratic takeover of the White House and the Senate.  They argue that highly conservative Republican appointees have a majority on the Court only because Republicans have broken longstanding norms, particularly by denying a hearing to Judge Merrick Garland for purely partisan reasons.  They believe that the norm against partisan manipulation of the Court’s size implicitly assumes that these other norms remain in force. 

     Even within its own terms, Court-packing only makes sense if the Democrats can maintain consistent control of at least one chamber of Congress or the White House.  If Democrats gain control of Congress and the White House and pack the Court, Republicans will be eager to return the favor at the first opportunity.  Democrats’ performances in elections over the past several decades do not inspire much confidence that they can make Court-packing stick. 

     Beyond the efficacy of Court-packing, however, these proposals make me deeply uncomfortable.  I will leave to others the questions of what this would do to the credibility of the Court and to public confidence in the rule of law in this country generally.  These are serious issues, ones that progressives hoping to harness the rule of law to restrain powerful moneyed interests would do well to consider.  I, however, would like to focus on the consequences of such a move on Congress and on legislation important to the progressive cause. 

     Unless President Trump thrusts this country into a recession of staggering proportions, Democrats will remain far from the sixty votes required to surmount a Senate filibuster.  Court-expanding legislation is not primarily fiscal so it cannot pass with 51 votes through reconciliation.  Its enactment therefore depends on a hypothetical future Democratic Senate Majority Leader invoking the “nuclear option” to eliminate the filibuster against legislation. 

     This would be a serious mistake. 

     Although the legislative filibuster has frustrated some progressive ambitions, it is not nearly the obstacle that many imagine.  Both a carbon tax and universal eligibility for Medicare could easily be enacted through existing reconciliation procedures, circumventing the filibuster.  So could a new entitlement to child care subsidies. 

     Progressives also underestimate how many important social advances the filibuster has preserved.  Had Republicans not been constrained by reconciliation rules, they surely could have found ways to buy off another senator and repeal the Affordable Care Act.  The threat of a filibuster has prevented Republicans from defunding the Legal Services Corporation and numerous environmental and social services programs too obscure for a defunding to attract media attention.  With the parties’ bases becoming increasingly ideologically monolithic, Republicans could defund a great many programs without alienating many voters or contributors even if their actions were widely publicized.  Tearing down programs is much faster and easier than building them up.  And are we really confident that Republicans could not keep their party together to enact what they would call “common sense” curtailments of civil rights legislation?

     Proponents of eliminating the legislative filibuster also likely overestimate the fraction of the time the filibuster will be serving a Republican minority rather than a Democratic one.  Understanding how likely Democrats are to control the Senate is easier if one focuses on the states most likely to make the difference.  If Democrats win both Senate seats in the twenty-five most-Democratic states and win the presidency, they should control the Senate.  This can be termed a “par” result.  For each seat in those states that they lose – or if they lose the White House – they need to pick up a seat in one of the twenty-five most-Republican states. 

     According to the Gallop Organization, the reddest of those twenty-five most-Democratic states are Iowa, Nevada, New Hampshire, Wisconsin, and North Carolina.  The five bluest among the twenty-five most-Republican states are Georgia, Florida, Ohio, Kentucky, and Indiana. 

     At present, Democrats hold five seats in the twenty-five most-Republican states:  one each in Ohio, West Virginia, Arizona, Montana, and Alabama.  The Alabama seat probably disappears after the next election; the Ohio, West Virginia, and Montana seats probably disappear when the current holders retire, if not sooner.  The other seat in Arizona and perhaps the seats in Florida are the only truly plausible Democratic pick-ups in these redder states, absent the accident of a monstrous Republican nominee. 

     Republicans, however, hold eight Senate seats in the twenty-five most-Democratic states:  both seats in Iowa and North Carolina plus one each in Wisconsin, Colorado, Pennsylvania, and Maine.  None of these seats is as generically vulnerable as several of the Democratic ones mentioned above:  the incumbents (or their partisan successors) could lose any of them, but none exhibits clear Democratic structural advantages or is even dependent on the incumbent continuing to run.  And Republicans have recently run highly competitive races in several other Democratic states, often losing because of bad candidates. 

     In sum, a progressive strategy that assumes Democrats will control the Senate most of the time probably does not make much sense.  Democrats will want to be filibustering Republican bills at least as often as they will be frustrated by Republican filibusters of their own proposals. 

     Some advocates of court-packing insist that Democrats might as well eliminate the filibuster on legislation because Republicans are likely to do so themselves anyway.  This is very likely wrong. 

     Most obviously, if Senate Republicans wanted to eliminate the filibuster on legislation, they could do so right now.  Yet despite President Trump’s forceful demands, they have not.  It is important to understand why not.  In essence, eliminating the filibuster would dramatically diminish the power, prestige, and fund-raising ability of minority-party senators, consigning them to the same role as minority-party representatives. 

     And being a member in the minority party in the House is a pretty miserable job.  Except on those relatively rare occasions when the majority party fractures, minority members’ votes are largely irrelevant.  Minority members cannot call hearings and sometimes do not even get to select a single witness at hearings called by the majority.  Apart from the occasional motion to recommit or motion to instruct conferees, they have no influence over the agenda on the House floor.  Special interests wanting favors in appropriations, tax, or other legislation have little reason to donate to minority representatives unless a reversal of partisan control appears imminent.   Thirty Republican senators served in the minority there; many of the rest served as minority representatives.  The prospect of being minority senators is real to them, and they want to keep the experience from being too demoralizing. 

     By contrast, eliminating the filibuster against judicial nominations enhanced senators’ power to win confirmation of their political allies when their party controls the White House.  It reduced the political influence of minority senators in only one small aspect of their work.  Former Majority Leader Harry Reid acted sensibly to remove the filibuster against lower-court judges; without that action, very few of President Obama’s nominees would have taken their seats.  Republicans already had used the threat of the nuclear option to win confirmation of many of President George W. Bush’s selection and would not have hesitated to invoke it once Democrats tried to filibuster President Trump’s nominees.  Indeed, Senator Reid might have been well-advised to do as Senator McConnell just did:  to limit debate on such nominees to two hours each. 

     Of course, if Democrats eliminate the legislative filibuster, Republicans would have no reason to restore it.  But their own interests do not support its elimination in the first instance. 

     Advocates of Court-packing implicitly maintain that the Supreme Court is the most important policy-making institution in the country and that public policy is dominated by its pronouncements.  Without a doubt, the Court is indeed extremely important.  But, as Bill Eskridge and John Ferejohn have reminded us, we increasingly live in a Republic of Statutes.  The legislative filibuster is crucial to preserving that republic. 

Justices and Their Audiences

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).

Neal Devins and Larry Baum

Thanks to Jack Balkin for organizing and writing for this symposium; thanks too to all the participants for working so carefully through the ideas and evidence in the book and offering such insightful comments. In this post, we will discuss the factors that shape the Justices’ choices as decision-makers.  While The Company We Keep does not offer a comprehensive theory of decision making, we take positions on some basic questions about these factors, primarily as they relate to the influence of the Court’s environment on the Justices.  And the participants’ comments, especially their points of disagreement with us, are largely about what affects the Justices’ choices.  All the participants made important points about these factors and, in so doing, provided interesting angles from which to think through the central arguments made in our book. 

            1. Our central and most distinctive claim is that the Justices are influenced to a significant degree by the elite world around them.  This claim is rooted in the belief that Supreme Court Justices care a great deal about their reputation, particularly their reputation among those legal and social elites they interface with.  This seemingly common-sense claim is a departure from standard conceptions of the Court in both law and political science, and we are pleased that the participants see merit in our argument.  Their discussions of this influence illuminate and extend our argument in useful ways, especially by emphasizing the impact of ideologically defined segments of elites on Justices’ own thinking.  These contributions are exemplified by several insightful passages:  Rick Hasen’s observation that we live in a “post-fact society” where conservative and liberal Justices get their news from different ideologically-driven news outlets than conservative Justices (Linda Greenhouse also points to this phenomenon, noting Justice Antonin Scalia’s  depiction of the Washington Post as “shrilly liberal” and not worth reading);  Sandy Levinson’s related observation that “there is no longer a common culture” in the legal community, so that (among other effects) the most visible legal scholarship is now seen as simply part of the larger culture wars and dismissed by those who disagree with its policy consequences; and Frank Pasquale’s distinction between elites who care only about power (Schmittian leftists and rightists) and process-oriented elites who “believe that politics revolves around meaningful dialogue.” 

            Rick Pildes’s observations about Justices Hugo Black and Sandra Day O’Connor underline the reality that Justices do not automatically take the positions that would win the most approval from their most salient audiences.  Black and O’Connor are also examples of Justices who were part of multiple elite circles, in part because of their backgrounds in electoral politics.  In contrast, none of today’s Justices have held elected office, and the liberal or conservative social networks they are a part of are typically more homogeneous than those of many Justices in past eras. 

Read more »

Wednesday, April 10, 2019

The Timely Disposition of Certiorari Petitions

Gerard N. Magliocca

In May 2018, a petition for certiorari was filed in Altitude Express Inc. v. Zarda, which presents the following question:

"Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000-e2(a)(1), against employment discrimination 'because of . . . sex' encompasses discrimination based on an individual's sexual orientation."

This is a difficult question on which the circuits are divided. What has the Supreme Court with this petition? Nothing. Why not? Who knows. It's been nearly a year since the petition was filed. The parties deserve an answer.

The Court should think seriously about adopting a rule that sets a maximum time for considering a certiorari petition. There must be exceptions, of course, especially if another petition is granted on a related issue and the pending one is simply held until the granted case is decided. Zarda is not one of those situations. The Court, I submit, is being derelict in its duty to make a decision on this petition.

What is Judicial Courage?

Rick Pildes

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).

           There’s little writing exploring the nature and meaning of judicial courage.  Commentators sometimes praise individual decisions as “courageous,” but that usually means the decision falls in line with the commentator’s own preferences.  More broadly, I suspect most people intuitively think judicial courage means being willing to render “unpopular decisions” that the judge nonetheless believes are right.  

The Company They Keep is not about judicial courage, nor does it discuss the subject at all.  Yet one of the riches of this lucid and well-researched, important book is that it provokes fresh questions about the nature of judicial decision-making.  

As the book shows, the very concept of “unpopular decisions” is a shallow one that begs important questions.  Few decisions are universally unpopular; they are more likely to be popular among some groups or interests, unpopular among others.  Taking one cut at the differential distribution of support for Court decisions, Neal Devins and Lawrence Baum generate data showing, for example, that 44% of those with post-graduate educational degrees agree with the Court’s decision that flag burning is First Amendment-protected speech, while only 14% of those with lower levels of education agree.  The flag-burning decision, Texas v. Johnson, is still “unpopular,” but much more so among some parts of the public.

Similarly, post-graduate degree holders are considerably more supportive than those with lower levels of education of the Court’s early school-prayer decisions, or the Grutter decision on affirmative action, or the rights of detainees at Guantanamo (Boumediene) to habeas corpus.  Conversely, those without post-graduate degrees are more supportive of the Court’s Second Amendment decisions than those with such degrees.  In other important areas, educational levels do not affect the (un)popularity of significant Court decisions; about 80% of those in both educational groups dislike the Court’s Citizens United decision.

 If major Supreme Court decisions tended to correspond to the view of the overall “majority” among the public, these differences in support among various groups might be of less interest.  But that this is not the case is one of the major points of The Company They Keep.  In fact, public majorities agree with Court decisions only about 60% of the time, not much higher than a coin flip.  And the Court not only issues decisions that are highly unpopular, but sticks with those decisions even in the face of overwhelming popular and political opposition.  As already noted, 80% of Americans disagree with Citizens United (and 65% strongly disagree), yet the Court majority continues to issue new decisions that follow the same logic.  In earlier eras, the Court similarly ordered busing or struck down second-trimester abortion regulations in the face of intense popular-majority opposition.  

If Presidents are lucky enough to have enough vacant seats to fill, new appointments might move the Court in the direction of then-prevailing popular views.  But that is a matter of luck, not inevitability.  As I have argued, and The Company They Keep confirms, the Court has considerable freedom to act, and does act, contrary to the view of “popular majorities.”   The Court is not necessarily a “majoritarian” institution.  As Devins and Baum conclude, “we doubt that mass public opinion does a great deal to deter Justices from reaching decisions they would otherwise prefer to reach” (p.154).

But Devins and Baum also argue that, if Court decisions are often at odds with the preferences of “the mass public,” their decisions do seem to be more in accord with the views of the “institutional legal elite” (as the data above suggests).  The book is a bit vague about who exactly constitutes this elite of the legal profession, but it seems to include the press that covers the Court, the elite law schools (“The importance of legal academics should be underlined,” p.42), the more nationally-oriented and Court-oriented segments of the bar, and organizations like the Federalist Society and the American Constitution Society.  

The book does not try to make any traditional causal claims that the development of certain positions among legal elites then causes Justices to adopt those views.  Instead, it offers a social-psychological model, which argues that Justices already come steeped in these elite legal worlds, that their views have been forged within that world, and that they possess social identities (about which they care, as does everyone) more bound up with their interest in respect and approval from within these elite reference groups than with approval from the general “public.” The principal “audience” that Justices care about is these legal elites.  

A significant issue, then, which the book hints at but does not explore deeply, is what precisely these “legal elites” care about when it comes to judicial decisions.  To the extent they care significantly about the legal integrity of decision-making, which Devins and Baum suggest they do (even if different groups within the legal elite have different views about what that means, as the polarized legal elite of our era does), The Company They Keep suggests a social-psychological mechanism through which legal integrity is one significant influence on judicial decisions.

This brings us back to the subject of judicial courage.  Judges who believe campaign-finance regulations violate the First Amendment, for example, are not likely to be too troubled that 80% of the public dislikes those outcomes if their elite legal “reference groups” celebrate those decisions as legally sound.  Similarly, back in the era when judges were striking down second-semester abortion laws even if those laws had broad public support, general “public opinion” surely mattered less when the elite legal reference groups about which these judges most cared resoundingly approved those decisions.  

Devins and Baum enable us to see, then, that judicial courage might best be thought of as rendering decisions (particularly on major issues) that the judge believes are “right” even when the elite legal reference groups that matter most to that judge will strongly condemn that decision.  If Devins and Baum’s theory is right, those are the contexts in which judges must overcome the greatest psychological strain, a strain not  between “what I believe the law requires” and what “the majority” prefers but between my belief as a judge and the belief of those upon whom my own sense of identity, reputation and stature rests.

Defined this way, how often we see acts of judicial courage?  I will leave readers to their own judgments about contemporary judges, and I will avoid law-clerk hagiography by not writing about judges for whom I clerked.  But I will offer two brief examples from the past.  The first is Hugo Black, thoroughly a product of Alabama at the time he joined the Supreme Court and the only Justice from a Deep South state on the Supreme Court that decided Brown v. Board of Education (thanks to Akhil Amar for reminding me of this example).  After the decision, Black was barred from his 50th law school reunion at the University of Alabama Law School; the Alabama Senate passed a resolution prohibiting him from being buried in the State; and his two sons (one on a path to an Alabama Senate seat) had to move out of the State as a result of the Alabama backlash to Black’s vote in Brown.  It is hard to believe Justice Black did not realize reactions of these kinds were likely in Alabama – in fact, he battled within the Court against using “all deliberate speed” in the decision because he knew the South and knew that phrase would become an excuse to prolong desegregation.  Perhaps by the time of Brown¸ Justice Black’s sole reference group was liberal opinion leaders in the North, not in Alabama, but I doubt it.

The second example is more recent.  Justice Sandra O’Connor finally seems to be getting her due, to which Evan Thomas’ superb biography is contributing.  I had the opportunity to first observe Justice O’Connor up close early in her career (I clerked for Justice Thurgood Marshall in 1984-85), then from more of a distance.  There are many familiar criticisms of her more pragmatic style of decision-making, as well as of specific votes she cast.  But while Justice O’Connor never faced consequences for her votes as dramatic as those Hugo Black endured, she was capable of regularly doing what she thought was right even in cases in which it was obvious she would face the scorn and anger of the elite legal actors that were her most natural referent group (that’s why the cry of “no more O’Connors” arose among those who had been most responsible for her appointment).  Defined in the terms described here, I saw a Justice with the backbone to stand apart from her natural circle of validation and exhibit the kind of judicial courage that The Company They Keep helps us see is the most difficult we attain. 

One of the tributes to the fresh perspective Devins and Baum provide is that they spawn new questions about judges and courts or helps us to ask old questions with fresh insight.

Tuesday, April 09, 2019

Newtonian and Anti-Newtonian Political and Judicial Polarization

Mark Graber

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).

The PEW Research Group’s surveys of public opinion in the United States document the fundamental regime change that has taken place over the last half century. Public opinion surveys taken during the Great Society found that elite Republicans and elite Democrats were more likely to agree with each other than with less educated and less economically well-off members of their parties on such fundamental civil liberties issues as racial equality and free speech.  Surveys taken in the wake of Roe v. Wade (1973) found that a college education and an upper-middle class income better predicted pro-choice commitments than Democratic (or Republican) party membership.  Pro-life advocates, these surveys found, were  substantially overrepresented among both Democrats and Republicans with less education and income.  This elite consensus, PEW learned in 2005 and 2011, had dissipated.   When Barack Obama took office, elite Republicans and elite Democrats disagree with each other on all the major issues of the day, from national health care and same-sex marriage to the use of torture and gun control.  Donald Trump’s presidency has only aggravated partisan and policy differences among American elites.

The Company They Keep: How Partisan Divisions Came to the Supreme Court details how this change in the structure of public opinion in the United States has changed Supreme Court decision making.  Neal Devins and Lawrence Baum trace developments in the path of constitutional law to developments in the underlying constitutional politics in ways that should shape constitutional discussions as Americans enter the third decade of the twenty-first century.  During the Great Society, when the vast majority of elites took liberal positions on most issues before the Supreme Court, the Supreme Court engaged in consistent liberal activism.  Although the Court was described as having a more liberal and more conservative wing during this time period, the better division was between more and less liberal justices or, even better, between liberal proponents of judicial restraint and liberal proponents of judicial activism.  When elites became polarized, courts became polarized.  Democrats nominate committed liberals to the bench in large part because the vast majority of Democratic elites who have the traditional qualifications for federal judgeships are committed liberals.  Republicans nominate committed conservatives to the bench in large part because the vast majority of Republican elites who have the traditional qualifications for federal judgeships are committed conservatives.  A few moderates remain in the judicial pool, but one can get some sense of their relative numbers by comparing the number of elite law professors and legal groups who either insist that the due process clauses of the Fifth and Fourteenth Amendments does not protect abortion or that those due process clauses prohibit all proposed restrictions on abortion with the number of elite law professors and legal groups who insist that abortion should remain legal and heavily regulated.  The court is more partisan, Devins and Baum detail, because politics is more partisan.

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Monday, April 08, 2019

Partisan Divisions in the Supreme Court: It's Likely to Get Worse (and There's No Reason to Think that it Will Necessarily Ever Get Better)

Sandy Levinson

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).

It is tempting to incorporate by reference the other excellent reviews of The Company They Keep:  How Partisan Divisions Came to the Supreme Court,, a truly interesting and important book by Neal Devins and Lawrence Baum.  I particularly like Jack’s placing the central arguments of the book within the larger political context of the Reagan Administration and the particular role played by the unsung “hero” Edwin Meese.  Meese’s centrality to the story can be best understood if one compares the relatively insignificant role played by the American Constitution Society, ostensibly the liberal alternative to the Federalist Society, in national judicial politics during the Obama Administration.  Whatever Eric Holder’s other strengths may have been, he was no Ed Meese in terms of making it a central goal of those charged with judicial selection within the Department of Justice to “clear it with Caroline (Fredrickson)” in a way that Meese’s prescient focus on the Federalist Society has led, ultimately, to Trump’s basically delegating to Leonard Leo, backed by the Federalist Society and Heritage Foundation, the task of selecting federal judges.  Indeed, Meese, drawing on his speechwriter Gary McDowell, a trained political theorist, made several speeches, including one at Tulane, that directly generated intense debate among legal academics about basic constitutional theory, including what was then a somewhat nascent “originalism.”  One might compare this, ruefully, with the fact that not only Holder, but also his boss, the former President of the Harvard Law Review and a former member of the University of Chicago Law School faculty, never once offered an interesting observation about the United States Constitution and the vision presumably underlying it nor indicated any deep interest in molding the federal judiciary through judicial appointments.  

            But Devins and Baum are not primarily concerned with the process of judicial selection, though much in their book is obviously relevant to that.  Rather, they are interested in the phenomenon of polarization within the Supreme Court itself.  Perhaps they should have added a further clause to their subtitle, consisting of “and Why the Divisions Will Almost Certain Continue and Get Worse.”  The reason is deceptively simple:  Judges are not simply individual monads with their own ideologies or ostensible approaches to legal interpretation.  Instead, one must realize that judges are human (or, as Nietzsche might have put it, “all too human”) and, like most of us, seek approval and even affection.  There may, of course, be some exceptions, but it would be foolish indeed to believe that judges are indifferent to what those people or organization whom they most respect think of them.  As social creatures, they are subject to the same pushes and pulls of social psychology that explain most people.  It is not enough for the Federalist Society (nor would it be for the ACS) to assure that compatible judges are nominated.  Instead, they must be encouraged to remain vital parts of the political movement that accounts for their nomination in the first place. 

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Saturday, April 06, 2019

The Political Theory of a Balanced Bench

Frank Pasquale

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).

The Company They Keep is engagingly written, and thoroughly researched. Devins and Baum (DB) focus on what might be dubbed the “puzzle of Supreme Court partisanship.” In the mid-20th century, many justices trended toward more liberal stances, acknowledging and sometimes conceding the demands of rising social movements. By the 2010s, SCOTUS has frozen in partisan amber. DB ask us to consider why the change occurred. They give us at least three reasons why SCOTUS is a court “in which ideological divisions follow party lines.”

First, partisan polarization in the US as a whole ensures that SCOTUS only includes “justices whose ideological views reflect the dominant views in the appointing president’s party.” Second, serving with life tenure, the justices are insulated from commonplace political pressures, and “take cues primarily from the people who are closest to them…and these people are part of political, professional, and social elites.” Given the rise of the conservative legal movement, DB argue, that social world has been tilted rightward for conservative justices. Third, given its identity as a court, SCOTUS must (appear to) decide most cases in a professional and neutral way, adhering to standard methods of constitutional and statutory interpretation.

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Friday, April 05, 2019

The Company We No Longer Keep

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).

Linda Greenhouse

            Two texts, a quarter century apart, frame the issue under discussion in this symposium. In 1986, shortly before becoming Chief Justice, Justice William Rehnquist published an article he titled “Constitutional Law and Public Opinion.”  [20 Suffolk U. L. Rev. 753, 768 (1986)]  Public opinion inevitably influences courts, he wrote, explaining that while judges live isolated lives, they are not “sealed off hermetically” from the world around them.  “[J]udges go home at night and read the newspapers or watch the evening news on television; they talk to their family and friends about current events. Somewhere ‘out there’ – beyond the walls of the courthouse – run currents and tides of public opinion which lap at the courthouse door.”
            Fast forward 27 years. In 2013, Antonin Scalia, who joined the Supreme Court the same year Rehnquist became Chief Justice, gave an interview to New York Magazine.  

Where did he get his news, the interviewer, Jennifer Senior, asked him. “We just get the Wall Street Journal and the Washington Times,” Scalia replied, referring to the flamboyantly conservative newspaper owned by the Unification Church. “We used to get the Washington Post but it just went too far for me. I couldn’t handle it anymore . . . And you know, why should I get upset every morning?” He went on to describe the Post as “shrilly, shrilly liberal.”

            William Rehnquist was, of course, deeply conservative, and let’s assume so were the friends and family members with whom he discussed current events. But when he turned on the television to watch the evening news, it was the same network news that not only his friends and family but his liberal colleagues.

            William Brennan and Thurgood Marshall were watching as well. Different Justices could and undoubtedly did respond differently to what they saw on the home screen. But at the same time, there was no alternative universe for any of them to take refuge in, no walling themselves off from the mainstream media’s delivery, to the best of its ability, of fact-based news. By the time Scalia died in early 2016, that era of common factual ground was long past.

            And that’s a main reason why theories about public opinion formation with respect to the Supreme Court have long needed an update. The subject has always been elusive. A decade ago, two esteemed scholars of judicial behavior, Lee Epstein and Andrew D. Martin, confessed their puzzlement, giving their article the title “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” [13 U. PA. J. Const. L. 263 (2010]
            Further complicating matters, the public’s response to the Supreme Court has changed in recent years. Needless to say, Supreme Court decisions have always been controversial. But political scientists developed a “positivity theory” to account for the fact that the Court’s decisions tend to be accepted by the public and thus to confer legitimacy on the Court itself. That was true even for Roe v. Wade; a National Opinion Research Center (NORC) survey conducted two months after the opinion was issued “showed a remarkable liberalization of abortion attitudes on the part of all groups and subgroups of American society,” an outcome that suggested “an immediately legitimating effect on public opinion.”[1] (Devins’ and Baum’s assertion that Roe, along with Obergefell, “were highly controversial when they were handed down” reflects a near universal assumption, but it’s not accurate, at least with respect to Roe. Intense controversy over abortion, of which Roe became the symbol, developed over the ensuing years under careful cultivation by the Republican Party and the religious right.)[2]

            Compare what happened in the immediate aftermath of Sebelius v. N.F.I.B, the Court’s first decision on the Affordable Care Act, in June 2012. The public was intensely divided before the decision that upheld the individual mandate, and months later remained divided. A Kaiser poll in March 2013, nine months after the decision, showed 68 percent of Republicans opposed to the law and 58 percent of Democrats in favor. (And a Gallup Poll conducted immediately after the decision showed that Republicans’ favorable rating of Chief Justice Roberts, whose vote was the key to the law’s survival, had dropped by 40 percentage points since the beginning of his tenure, with barely a quarter of Republicans viewing him favorably, while Democrats’ favorable rating of Roberts rose by 19 points to pass the 50 percent mark. This same post-decision poll found that Republican approval of the Supreme Court’s job performance plummeted since the previous year from 50 percent to 29 percent, while Democrats’ approval rose from 46 percent to 68 percent.)  Political scientists are beginning to wonder whether their cherished positivity theory still holds up.[3]

            And if it doesn’t? From the outside, given the accumulation of 5-to-4 decisions and the fact that the justices’ ideology maps precisely onto the party of their appointing presidents, it certainly appears as if the Court is approaching a danger zone, a looming crisis of legitimacy. The Justices know this, certainly. Chief Justice Roberts has worried aloud about it, more than once. So, recently, has Justice Kagan. Don’t these smart people care enough to do something about it?

            It’s Neal Devins’ and Lawrence Baum’s contribution to show why that’s not likely to happen, why Justice Alito is not going to stop his flagrant and norm-bending trolling for cert petitions that can provide vehicles for overturning precedents he wants to erase (see Janus and, more recently, ) and why Justice Thomas isn’t going to curtail his march through the Bill of Rights with solitary opinions urging time-travel back to 1791. Nor, for that matter, is Justice Ginsburg likely to stop sporting her famous “dissent collar,” now available for sale at Banana Republic, which will donate half the proceeds to the ACLU Women’s Rights Project.

            Each of these Justices is playing to a base. While we’re not accustomed to thinking of Supreme Court Justices as having a base, the point is that a Justice’s base doesn’t consist of a crowd of people in MAGA hats, or the equivalent liberal headgear.  Devins and Baum explain that the approval today’s Justices seek is not the adulation of the crowd but rather the esteem of their peers among the country’s elite. By itself, there’s nothing new in that observation. The three other Republican-appointed Justices who signed onto Harry Blackmun’s 7-2 opinion in Roe v. Wade were not, it’s safe to say, motivated by an epiphany about the role of reproductive freedom in permitting women “to participate equally in the economic and social life of the Nation,” as the Court would put it 19 years later in Planned Parenthood v. Casey. Rather, Blackmun and the other members of the majority were responding to the recent abortion-reform initiative of the American Law Institute and to calls by the American Medical Association and the public health profession to end the century-old regime of abortion’s criminalization. They were responding, in other words, to their fellow elites. The Court was a follower – not, as so many assume today, a leader.

            What’s new about The Company They Keep is the insight that the elites in the country today are polarized to a striking degree, no longer meeting across ideological lines for lively conversation at Katharine Graham’s Georgetown dinner table, no longer, a la Scalia, exposing themselves to ideas they might find disagreeable. The nomination and confirmation process is an inherent part of this picture of course – inevitably, when a president’s goal is to move as far to the right as possible and still get 51 votes. Gone are the days when an Antonin Scalia can be confirmed by a vote of 98-0 and a Ruth Bader Ginsburg by a vote of 96-3.  It’s this polarization that today’s Supreme Court reflects – and if the Court is poorer for it, so are we all.
Linda Greenhouse is Joseph Goldstein Lecturer in Law and Knight Distinguished Journalist in Residence and at Yale Law School. You can reach her by e-mail at linda.greenhouse at

[1] William Ray Arney & William H. Trescher, Trends in Attitudes Toward Abortion, 1972-1975, Fam. Plan. Persp., May/June 1976, at 117, 124.  See also Linda Greenhouse & Reva B. Siegel, Backlash to the Future? From Roe to Perry, 60 UCLA L. Rev. Disc. 240, 244 n. 14 (2013).
[2] See Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028 (2011).
[3] James L. Gibson & Michael J. Nelson, Reconsidering Positivity Theory: What Roles Do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy, 14 J. Empir. Leg. Stud. 592 (2017).

Thursday, April 04, 2019

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).

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Wednesday, April 03, 2019

All Hail Ed Meese!


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).

Devins and Baum's The Company They Keep is a fine book that nevertheless manages to bury the lede. In order not to make the same mistake, I will state the theme of this review in the first paragraph. What Devins and Baum actually show—in spite of themselves—is how social movements change the Constitution. Moreover, the hero of the book is Ronald Reagan's second Attorney General, Edwin Meese, who does not even make an appearance until Chapter Three. Now that's burying the lede!

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Tuesday, April 02, 2019

Siloed Justices and the Law/Politics Divide

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).

Richard L. Hasen

In an eye-opening 2013 interview with journalist Jennifer Senior, the late Supreme Court Justice Antonin Scalia explained his “media diet.” He said that he read the Wall Street Journal and the Washington Times. He had dropped his subscription to the Washington Post because of what he saw as the newspaper’s “treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.” He also said he did not read the New York Times and that he got most of his news from talk radio.

Scalia’s media diet was a sign of things to come.

In Neal Devin’s and Larry Baum’s indispensable new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court, the authors convincingly argue that the two leading political science models of Supreme Court judicial decisionmaking—the attitudinalist model positing that Justices vote their values and the strategic model positing that Justices vote strategically to advance their values in light of the potential reactions of other strategic actors, such as Congress and executive agencies—inadequately describe the Justices’ decisionmaking. Devins and Baum offer a psychological model positing that Justices, like others, are the product of the world around them, and Supreme Court Justices travelling in elite social circles seek affirmation and approval from these elites.

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Introduction to Balkinization Symposium on Neal Devins and Lawrence Baum, The Company They Keep


Devins and Baum, The Company They Keep
This week at Balkinization we are hosting a 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).

We have assembled a terrific group of commentators, including Mark Graber (Maryland), Linda Greenhouse (Yale), Rick Hasen (U.C. Irvine), Sandy Levinson (Texas), Frank Pasquale (Maryland), Rick Pildes (NYU), John McGinnis (Northwestern), and myself.

At the conclusion, Neal and Larry will respond to the commentators.

Monday, April 01, 2019

How FDR’s Court-Packing Plan Set Progressive Policies Back by 25 Years

Rick Pildes

           As Democrats imagine what they might do with political power should they gain control of the White House and Congress after 2020, some progressives have been arguing that Democrats are justified in expanding the size of the Supreme Court.  A recent Washington Post piece discusses the politics emerging in the Democratic primary campaigns around this issue.  Other liberals have pushed back against the idea (for some examples, see here and here).  In light of this emerging debate, I want to highlight certain less-familiar aspects of the law and politics surrounding FDR’s failed Court-packing proposal of 1937.   The circumstances favoring FDR’s Court-packing plan would seem to be about as favorable as might be imagined, yet FDR not only lost the Court-packing battle, that loss was politically devastating for the New Deal overall.  

          First, let’s recall just how breathtaking and profound the Court’s conflict was in that era with FDR’s and Congress’ policies.  The major highlights are widely known and still taught in law schools – the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA).   

          But here is a sense of the range of national and state legislation and presidential action the Court held unconstitutional in one 17-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition and the president’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the president to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Bituminous Coal Conservation  Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, perhaps most dramatically, in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades.  Some of these decisions have withstood the test of time, but most, of course, have not.        

          In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional.  Earlier work suggests the courts issued more than 1,600 injunctions against New Deal legislation, but a recent talk I heard by Professor Barry Cushman put that figure at more than twice that number.  Moreover, at least some of these issues had direct and obvious effects on the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.”  What would the modern Court have to do, and in what context, that would come close to all this?

Second, FDR was in as strong a political position as any President has ever been in the modern era.  He had just won 60.8% of the popular vote, the largest popular majority ever at the time.  In the electoral college, he had won 98.5% of the electoral votes (all but the eight votes of ME and VT).  The Court-packing bill was the first piece of legislation FDR put forward after this massive 1936 electoral triumph.  And the 1936 elections were a sweep for the Democrats in the House and Senate, too.  In the Senate, the Democrats held 76 Senate seats, Republicans just 16 (sorry AK and HW, you weren’t states yet).  In the House, Democrats had a 334-88 advantage.  Of course, the political parties of that era were far from as ideologically coherent as today’s parties, with the Democratic Party containing both conservative Southern Democrats, urban-machine Democrats, and Democrats from Western states.  But even so, FDR’s electoral “mandate” was unmatched, then or now.
Yet despite FDR’s popularity and the Court’s actions, almost as soon as he announced the Court-packing bill, two-thirds of the newspapers that had endorsed FDR came out vociferously against the plan.  This response was geographically widespread, bipartisan, and intense.  The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge in that era.  Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan.  Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Burton Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart.  And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court packing.  

Why was FDR’s decision to engage Court-packing so destructive politically for him and the rest of his domestic agenda?  The simple answer is that, even for the most popular President in modern political history --at the zenith of his popularity -- changing the size of the Court for political reasons was widely viewed as a dangerous form of political over-reaching. 

Finally, and perhaps most importantly, when FDR lost the Court-packing fight, he didn’t just lose that one battle:  that battle was politically catastrophic for much of the rest of his domestic political agenda.  Indeed, the fight over Court packing largely killed the progressive legislative agenda until the 1960s.  As FDR’s second vice president, Henry Wallace, observed in looking back at these events: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.”  The next major item on FDR’s agenda had been national health-care; after the Court-packing fight, FDR felt forced to drop the issue.  As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.”  The Republican Party had been declared virtually dead in the wake of the 1936 elections.  But in the 1938 mid-terms, the Democratic Party lost 71 House seats, 6 Senate seats, and 12 governorships; nationwide, the two parties divided the congressional vote almost evenly (all the more remarkable because the Democratic Party had a near monopoly in the South).

Many lawyers are unlikely to be aware of the political ramifications of the Court-packing fight.  The way this issue is taught in the court-centric law schools, FDR lost the battle, but won the war.  The Supreme Court did turn his way and came to accept the constitutionality of the New Deal.  But that was mainly because FDR prevailed through the ordinary political process in appointing sympathetic Justices.  Between 1937 and 1943, he was fortunate enough to be able to appoint a remarkable number of Justices – seven – to the Court.     
Of course, present circumstances are never precisely the same as the past.  Today’s Democratic Party, which still must win moderate House districts to control the House and is divided between moderate and more liberal factions, is nonetheless nowhere nearly as ideologically divided as in the 1930s.  But then, today’s Republican Party is also more ideologically unified than in the 1930s as well.  In addition, the Court’s size has been fixed at nine since 1868, with FDR’s failure now having contributed an additional 80 plus years to that institutional settlement.   

But if debates about Court-packing move from campaign rhetoric to potential legislation, it is worth being aware that when the most popular president in history, with a Congress his party controlled overwhelmingly, clashed with the Court that was the most aggressive in American history in pervasively challenging national political power, FDR not only failed to get Court-packing legislation enacted, the effort generated a political firestorm that cost FDR the rest of his domestic agenda.   

[Parts of this posting are taken from my article, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Supreme Court Review 1]  

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