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!

In one respect The Company They Keep is an extended application of the central argument in Baum's 2006 book, Judges and Their Audiences, which is one of the most important—and also one of the most neglected—recent contributions to the literature on judicial decisionmaking.  In Judges and Their Audiences, Baum argued that judges are influenced by their "audiences," that is, the people before whom they perform, which means, in most cases, family, friends, social networks, and professional colleagues.

If we shift our focus to the U.S. Supreme Court, as Devins and Baum do in this book, we would ask: who is the most important audience for U.S. Supreme Court Justices? The answer is political and legal elites, especially prominent members of the legal profession, members of the Supreme Court Bar, and parts of the legal professoriate. That is to say, the most important audience for Supreme Court Justices is other elite legal professionals and legal intellectuals.

If that is so, then, Devins and Baum argue, theories of judicial behavior that argue that judges respond to pressure from the other branches or from public opinion are likely to lead us astray. Justices, who give up large sums of future income in the quest for power and status, want above all to be held in great esteem—and they want to be held in esteem by fellow members of the elite groups from which they are selected. Hence the title of Baum and Devins' 2010 article, Why the Supreme Court Cares About Elites, Not the American People.

The next step in the argument is to note that elite opinion is not static, but changes over time.  For example, elites believed in scientific racism during the Gilded Age, but by the 1940s they had become relatively anti-racist. Elite opinion can also be organized in many different ways. Elites can converge on a wide range of issues, they can converge on only some issues while disagreeing on others, or, perhaps most interestingly, elite opinion can become bipolar, strongly divided into two camps.

This last phenomenon is essentially what happened during the Reagan regime that begins in 1980. The conservative movement believed that it was being unfairly shut out of cultural and legal power by a liberal hegemony. As a result, movement conservatives created their own counter-institutions, including conservative media like Fox News (begun in 1996), conservative think tanks like the Heritage Foundation (founded in 1973), and conservative elite networks like the Federalist Society (begun in 1982).  These counter-institutions produced and nurtured a set of conservative elites who became the new reference group for Republican appointed judges and Justices. The result was a sharp bi-polar distribution of elite opinion, with liberal Justices paying attention to (what used to be called) the “mainstream” of center-liberal elite opinion, and conservative judges and Justices paying attention to their cohorts in the world of conservative elite opinion.

One of the ironies of conservative rhetoric during the Reagan era was the repeated assertion that liberal judges are elitists—that is, that they are influenced by liberal elites. Well, that may be so, but conservative judges were no less influenced by elites—just a different set of elites!

How social movements influence elites

All of which brings us to the book’s buried lede.  Devins and Baum view their primary theoretical adversaries as political scientists. They disagree with those political scientists who claim that the Justices act to satisfy their political preferences, that they act strategically to achieve their political goals, or that they respond to pushes and shoves from the political branches or from public opinion.

All well and good. But there is an elephant in the room—or rather, a significant legal and political literature—that they do not spend much time addressing. This is the theory that, over long periods of time, the federal judiciary and the Justices respond to social and political mobilizations, and especially in the modern era.

I say that this is the elephant in the room because the phenomenon of social movement activism is literally everywhere in the book, but it is rarely mentioned explicitly. The words "social movement" appear at only three points in the book's text. But when Devins and Baum talk about the rise of and the effects of the conservative movement in chapters 3 and 4 of the book, they are talking about the most successful social movement of our time. Note the irony: The last half of the book is about the effects of a particularly powerful social movement, and yet social movements are nowhere to be seen in the theoretical model developed in the first half!

Why is so little attention paid to social movement theories of constitutional change in this book? The most likely reason is that Devins and Baum assume that theories that focus on social movements are just a special case of theories that claim that the Court is shaped by general popular opinion. The idea is that social movements generally operate by changing public opinion, which, in turn, shapes the views of the Justices. Because Devins and Baum argue that public opinion is not a significant motivator of judicial opinions, they don't have to say much about social movements. As they put it, "we disagree with legal scholars and commentators who argue that the Court has largely followed broader cultural trends, related social movements, and public opinion. Rather, we argue that the Justices are more responsive to relevant segments of the social and political elite than to the public as a whole." (p. 9).

But what if that is not the best way to understand how social movements actually influence the judiciary?

In fact, there are at least two different mechanisms for social movement success. The first is to target general public opinion, in the hopes that this will eventually influence the views of the Justices. The second is to try to change the opinion of the elites whose esteem the Justices seek and honor. If Devins and Baum are correct, social movements may get more bang for the buck by changing the minds of well-educated elites, and especially well-educated *legal* elites, which is the peer group from which most Justices are selected.  In addition to rounding up a broad base of popular support, social movements may be well advised to try to change educated elite opinion—reasoning, not altogether incorrectly, that well-educated elites may be more open to certain kinds of arguments and therefore easier to persuade.

And guess what: that's how a lot of successful social movement activism works! For example, the Warren Court's embrace of more liberal views about race, obscenity, freedom of speech, and sexual privacy probably owed as much to the influence of reform movements on elite public opinion as they did to changes in public opinion generally. When Justice Scalia complained about the role of elite values in the Court's gay rights cases, that was because he assumed that gay rights advocates had made greater progress among educated elites—and especially among legal elites—than among the great mass of the public.

It is important to understand that social movements are complicated configurations with many different parts.  Social movements generally work from the bottom up, and try to persuade as many people as possible. That is how we normally think of social movements. But social movements may also have elite elements, or they may have important allies in elite circles, and especially legal elite circles.  These latter elements of social movement activism may seek influence from the top down as well as from the bottom up. And the more powerful a social movement becomes, the more it can rely on both strategies.

The conservative movement, for example, does not start out as an elite movement. But it takes over a major political party in the 1980s, and eventually encompasses many elite elements and elite policy networks, including the Federalist Society.  It also begins to have a major presence in mass media after the repeal of the Fairness Doctrine, leading first to talk radio, then to Fox News, and then to a substantial number of conservative websites.  At this point in history, the conservative movement is composed of many powerful elite institutions, organizations, and sources of funding, in addition to the grass roots elements from which it originally sprung.

It is important to recognize that neither the Federalist Society nor Fox News *are* the conservative movement. Rather they are an elite policy network and a mass media organization that are *part of* or *allied with* the conservative movement. As the two grow in power and influence, they assist the larger movement they are allied with. And, to return to Devins and Baum’s argument, each is an important vehicle for influencing conservative elite opinion, and thus, the views of conservative judges and Justices. 

Successful social movement campaigns hope to affect a wide swath of society. But if Devins and Baum are correct, it's *also* important than they—or certain parts of them, at least—aim at the most well-educated and elite members of society. It's only natural that they would do so. Most social movements these days employ and attract a lot of lawyers, and they may even encourage legal scholarship about their causes. So there are likely to be multiple connections between social movement activism and elite legal consciousness.

Thus we may not have to choose between the view that sustained social mobilizations affect the Justices' decisions and the view that elite opinion affects the Justices' decisions. In many cases, these may be the *same* explanation, if we remember to ask the further question of how elite opinion is formed and how it changes over time.

How social movements can help foster elite networks

But wait, there's more.  The connection between social movement activism and elite opinion also explains another important feature of the book's argument, and here we come to the role of Edwin Meese.

Recall the argument so far. If social movements want to change the beliefs (and decisions) of the Justices, there are basically two ways to do that. The first way is to change the Justices through the appointments process. This is what Sandy Levinson and I, along with Howard Gillman, call the strategy of partisan entrenchment.  In this respect the conservative movement has been very successful, and especially so in the Trump Administration.

The second way is to change the minds of the Justices, and according to the argument I've just made, the most efficient way to do that is to change the minds of the audience whose esteem the Justices care most about, which is to say, the minds of the elite peer groups from whom the Justices are selected.

But how do you change the minds of these elites? Once again there are two ways to do it. We've already described the first way: sustained social and political mobilizations that influence elite opinion. Once you get elite opinion on your side, the Justices connected to those elite networks will (eventually) follow.

But there's also a second way to change elite opinion: Create a new elite culture and *grow your own elites,* and work to make sure that judges and Justices are picked from that group.

That is essentially what the conservative movement did. As Devins and Baum report, President Reagan (and before him, Presidents Nixon and Ford) found it difficult to find qualified conservatives to fill judicial positions. The result was that they appointed a mixture of many different kinds of Republicans, several of whom turned out not to be reliable conservatives as time went on.

But once Reagan's first Attorney General, William French Smith, was replaced by his second Attorney General, Edwin Meese, the tide began to turn. Meese set out to use his position to create a cadre of conservative legal intellectuals in the Reagan Justice Department. He reached out to law students in the newly-formed Federalist Society. Along with other older conservative intellectuals like Antonin Scalia, he worked to create a legal counter-establishment that would grow over time, and would become an indispensable network for locating young conservative talent and placing that talent in key positions.

As Steve Teles explains, this counter-establishment was aided by strategic additions of resources and support by various conservative funders. And as Amanda Hollis-Brusky has explained in her book Ideas with Consequences, the Federalist Society, following Meese's and Robert Bork's lead, eventually settled on constitutional originalism as the lingua franca of the rising movement of conservative legal elites. One did not have to be an originalist in order to be part of the Federalist Society network, but originalism was a convenient way of talking about common conservative commitments to limited government and the rule of law. 

Moreover, because the conservative movement eventually takes over the Republican Party, the Federalist Society becomes an increasingly important network connecting young conservatives to elite networks of power from the 1980s onward. The Federalist Society eventually becomes the gateway to getting many different kinds of government jobs in Republican administrations, including judicial appointments.

Meese is the real hero (or anti-hero, depending upon your politics) of Devins and Baum's book. That is because he was at (or near) the center of a series of decisions by conservative movement actors to create a new set of elites that would serve as both the farm team and the reference group for conservative judges, as soon as they could be appointed by Republican Presidents. Once that reference group of conservative legal elites was in place, Republican appointees would no longer drift to the left like Harry Blackmun, David Souter, and John Paul Stevens (the so-called Greenhouse Effect). They would stay firmly in the Federalist Society orbit, and the legal intellectuals in the Federalist Society would reward them with esteem—and even hero worship—for staying true to conservative principles. Viewed from the perspective of thirty years later, it was a brilliant strategy of leveraging social movement energy to influence—and indeed create—a new form of elite opinion. Devins and Baum's book explains how and why conservative Justices are influenced by this elite opinion. But the key innovation is creating conservative elite opinion on the first place, which means, in this case, creating the conservative elites!

The seeds that Meese and his allies planted in the mid to late eighties bore fruit in the twenty-first century, with the appointment of Federalist Society members John Roberts, Sam Alito, Neil Gorsuch, and Brett Kavanaugh. As the song says, nice work if you can get it, and you can get it if you try. The conservative movement did try, and we see the results today.

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