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.