David Super ends his post, "The legislative filibuster is crucial in preserving" the republic of statutes. The language of preservation is the language of the status quo.

The implicit argument is this: Suppose we make it easier for progressive majorities to enact new statutes. Doing so will make it easier for conservative majorities -- when they exist -- to repeal existing statutes. And we have more to fear from the repeal of existing statutes than we have to gain from enacting new ones. This might not be the best of all possible worlds, but we've reached a state of affairs that's good enough, and we shouldn't try to make it better by means than threaten -- under some political conditions -- a regression from where we are.

I think the argument would benefit from unpacking. Super argues that repealing statutes is easier than enacting them in the first place. So, the thought appears to be, if progressive Democrats eliminate the legislative filibuster and enact new laws (to extend our democracy, to protect against climate disaster, whatever), Republicans will be able to repeal the new laws easily enough.

Formally speaking, that's true when appropriate conditions hold. Here the key condition is that Republicans would have to regain control of the Presidency and the House of Representatives as well as the Senate. As long as Democrats control one elected branch they can block repeal. At the very least this means that legislation enacted after the hypothesized elimination of the legislative filibuster would be on the books for up to four years before repeal. And, as political scientists know, new policies make new politics. That is, during those three or four years the statutes might generate sufficient support to allow Democrats to retain control of one elected branch for an additional period (two or more additional years). So, retaining the filibuster doesn't mean merely protecting existing statutes against repeal when Republicans return to power in all three elected branches; it means forgoing whatever political benefits might accrue from enacting the progressive Democratic agenda when Democrats have the chance to do so.

The supposed asymmetry between enactment and repeal may not be as great as Super says. Consider Obamacare repeal. Even without the filibuster the Senate under Republican control was unable to get a majority for repeal. Super suggests that in a world without a legislative filibuster Republicans might have been able to present Obamacare repeal outside the reconciliation process and somehow have gotten a majority to support a free-standing repeal statute. I can imagine a sort of seven-dimensional chess game in which that might happen, but I'd like to see a more detailed analysis of how and why it would.

What of the fact that the Republican Senate didn't repeal the legislative filibuster when it had the chance? My view is that it didn't do so because Republican leaders thought that they could accomplish their priorities without doing so. They got tax cuts for the wealthy and judicial nominations by using procedures not subject to filibuster, and they thought -- mistakenly -- that they could do the same for Obamacare repeal. Those were their priorities and that's why they didn't change the filibuster rule. That choice tells us almost nothing about what Republican leaders would do in a world where their ability to accomplish their most pressing legislative goals was blocked solely by the existence of the legislative filibuster (and not, for example, by the existence of a Democratic majority in the House of Representatives).

(I put aside the so-called deconstruction of the administrative state, much of which can be accomplished by executive and judicial action. That is, Republicans can get a lot of deconstruction done without enacting new statutes, though they could have gotten more done by doing so. Which is to say, deconstructing the administrative state hasn't yet been a high legislative priority.)

I note finally that the core statutes of the "republic of statutes" -- civil rights legislation and environmental laws in particular -- might have been difficult to enact, but they have proved equally difficult to repeal. The technique of conservative choice with respect to those statutes has been judicial obstruction through narrowing interpretations and holdings of unconstitutionality. Which brings us back to the Court-packing question.

Warren Miller's 1959 science fiction novel A Canticle for Liebowitz describes a world taken over by the forces of irrationality. A small group of monks retreat to their abbey with a collection of books saved by Isaac Liebowitz, the last repository of rationalism. The monks study the books for centuries and sporadically re-enter the world in an always-futile hope to re-establish a well-functioning social order guided by science and reason.

Today many liberals who factor the Supreme Court into their political calculations are a lot like the"Order of Liebowitz" in the novel. They too have a group of texts, one that they take to be the true foundation of constitutional law -- scattered volumes of the U.S. Reports numbered 347 (Brown v. Board of Education), 410 (Roe v. Wade), 539 (Lawrence v. Texas), 576 (Obergefell), maybe one or two more.

From these volumes these liberals draw a picture of the Supreme Court as an institution defending minorities against oppression and protecting freedom of expression against unjustified government suppression. They then rely on this picture to worry about policy proposals that in their view would damage the Court's legitimacy -- and thereby, the inference is, weaken the Court's ability to fulfill these honorable functions.

Had the monks retained the full set of U.S. Reports, or even a decent random sample, they might draw a different picture, one in which the Court overall (not in every case, of course) has reinforced oppression of minorities and suppression of speech. There are brights spots in the picture. Notably, Seth Kreimer has ably shown that the Court has done a decent job of policing "village tyrants," local legislators and executive officials who go out of their way to oppress and suppress. But, the picture as a whole is pretty gloomy.

The current Supreme Court has obviously done a bang-up job of protecting Big Pharma and the Koch Brothers and their ilk against government oppression (Sorrell v. IMS Health, Citizens United), and of course Muslims against racist policies (Trump v. Hawaii). And it seems poised to read the Constitution to allow Republicans to adopt policies that entrench the Republican party in Congress and state legislatures while finding Democratic (and democratic) policies unconstitutional.

So, what's the net effect likely to be of weakening the Court's legitimacy? Perhaps (one can always hope) a reinvigoration of a liberal legislative politics about the Constitution's meaning.

David Super's post on Court-packing properly sees Court-packing proposals in a larger political context. Rather than assuming that the proposals would be implemented in a politics-free world, he knows that they can succeed only if Democrats control the Presidency and both houses of Congress, and that Republican retaliation could occur only after Republicans regained control of all three (although that point gets a bit blurred because of his attention to the Senate -- Court-packing will stick as long as Democrats control one of the three elected branches and, in particular, even if they lose the Senate). Important as well, he understands -- as do proponents of Court-packing and indeed of much else in the progressive Democratic agenda -- that enacting Court-packing will require elimination of the legislative filibuster. (In principle, the filibuster could be eliminated for some subset of legislation, as it has been in the budget reconciliation process, but it seems clear to me that Super is right to assume "in for a penny, in for a pound" -- that is, any changes in the filibuster will be comprehensive rather than targeted. Still, I think it worth noting the possibility of targeted changes in the filibuster rule.)

Super observes that much of the progressive Democratic agenda could be enacted through the reconciliation process, and so could be accomplished without changing the filibuster rule. It's worth noting, though, that "much" is not all. In particular, it seems to me quite unlikely that the "democracy agenda" typified by H.R. 1 could be enacted through the reconciliation process. Or, put another way, if Democrats care about the democracy agenda they will have to modify the filibuster rule. (Perhaps we could encourage Democrats to develop a "democracy" rule according to which legislation aimed at advancing democracy would not be subject to the filibuster. Such a rule might be written, I suppose, to include Court-packing as a democracy-promoting proposal.)

But, though Super admirably expands our view of the relevant politics, he doesn't expand it enough. The lesson of board games like chess, go, Diplomacy, and Risk is that you have to pay attention to the entire board. And one part of the board here is the Supreme Court itself. So, suppose Democrats decide that they can get most of what they want through the reconciliation process. They still should worry that the Supreme Court will find their legislation unconstitutional through creative, currently off-the-wall arguments that will become plausible and eventually convincing to a conservative Supreme Court majority. Here's an example: Medicare-for-all or other health insurance plans that eliminate or sharply restrict markets for private health insurance violate an individual's freedom to choose how best to promote her health. (Sure, that's Lochner all over again, but that's hardly a criticism these days from a conservative point of view.) We could go through the same exercise for essentially every part of the progressive Democratic agenda. And, of course, many of the constitutional arguments we could come up with will today be "creative" or "unsound" or "only loosely connected to existing law." But we know enough about the political dynamics of constitutional interpretation to know that those characterizations are not fixed points in the constitutional universe, but result from the current state of political discourse. Change the conditions of the discourse by enacting the progressive Democratic agenda and the characterizations may no longer be apt.

An additional point about watching the whole board: Much of the discussion about Democrats' possible strategies -- on many subjects -- assumes that politics is static, that is, that the array of political forces today is pretty much what the array will be in six months, a year, two years.... Analysts then project today's politics on to programs that can be adopted only in the future. But, of course, politics is dynamic.

And here are two components of that dynamic: First, the Overton window: Merely by taking some policy proposals seriously, politicians can widen the space of "policies worth taking seriously" -- not necessarily the policies the politicians advocate, but policies they would be happy to see adopted.

Second, "new policies make new politics": Adopting and even just advocating for new policies can change the array of political forces. Obamacare is the obviously example, but those who advocate for "judicial reform" think that doing so might mobilize enough Democratic voters to offset the necessarily small increment of already highly motivated Republican voters on the issue of control of the courts. The often-cited polling results, that Republican voters care much more about the courts than Democratic voters do, is relevant only on the assumption that politics is static on this issue. And, I have to note, it seems to me that enough Democratic politicians are talking about judicial reform to suggest that they might be thinking that the issue is one that can (on the margins) affect politics favorably for Democrats.

So, ultimately the case for Court-packing rests on viewing the whole board and the dynamics of political and constitutional argument. You can't stop, as Super does, with a statute's enactment by Congress. [more on the "republic of statutes" to come]

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!

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.

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.

     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. 

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. 

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 50^th 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.

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. 

            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, https://www.supremecourt.gov/opinions/18pdf/18-364_08m1.pdf ) 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.

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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 yale.edu

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