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.
2.
Political scientists emphasize the impact of Justices’ policy preferences on
their choices, most strongly in the attitudinal model. We agree on the importance of those
preferences, and the impact of appointments by presidents who are careful in
their selection of Justices indicates that importance. Along these lines, Frank Pasquale is right to
note that conservatives will see our discussion of the ascendancy of the elite
conservative legal network as “a balm, not a curse,” while liberals will bemoan
this effort “to remake our judiciary.” We also think Rick Hasen makes an
important point about how the influence of ideologically defined segments of
the elite can make the Court look more attitudinal than it is.
Also important is
Mark Graber’s discussion of the need to avoid an assumption of ideological
symmetry on the Court. Mark usefully
explains that the partisan divide on today’s Court does not simply mimic the
larger ideological divide among liberal Democratic and conservative Republican
elites—where each side is more extreme in its ideological leanings than ever
before. On today’s Court, Democratic
appointees are moderate liberals and Republican appointees overall are strong
conservatives. This claim finds support
in our book; we discuss the greater role of ideology in recent Republican
appointments and use political scientist Michael Bailey’s ideological scores
for Justices to show that the increasing divergence between Republican and
Democratic appointees results primarily from a movement toward greater
conservatism among the Republican appointees.
We also discuss important differences between the more ideological
Republican party and the more constituent-driven Democratic party; these
differences are critical in understanding Reagan Attorney General Ed Meese’s
transformative role in shaping legal policy through his embrace of the
then-fledgling Federalist Society (an observation that is prominently featured
in Sandy Levinson’s and Jack Balkin’s posts).
3.
The impact of legal considerations doesn’t play a big role in our argument,
because those considerations aren’t a source of growing polarization. Thus John McGinnis is right in saying that
our discussion of the impact of law is thin. John is also correct in explaining
how a Justice’s commitment to one or another legal theory (most notably
originalism) explains both why a Justice typically but does not always reach
legal policy outcomes that match the policy views of the president/party that
appoints her. We make a related point
in the book, that we think the Justices’ orientation toward the law is a counterweight
against polarization; our emphasis is the commitment of Justices to norms of
judicial independence and collegiality. (Indeed, we hope to develop this
further in ongoing research comparing the norms/incentives of the Court with
Congress.) We are not convinced,
however, that John is correct in emphasizing the importance of legal
considerations in the development of conservative positions on legal
policy. We think ideology was the
driving force of Attorney General Meese’s embrace of originalism; that is,
Meese came to embrace originalism because he was in search of an interpretive
framework that was perceived to favor conservative results. Once established, originalism—as John
thoughtfully observes—has some independent force as does any other interpretive
framework. Justice Scalia, for example,
did not always advance conservative legal policy outcomes through his
application of originalism. But we think
this independent force is relatively limited in strength; for Scalia, like
other Justices who are committed to a particular approach to legal interpretation,
that approach typically led to results that were consistent with his policy
preferences.
Rick
Pildes raises the related and important question of what legal elites care
about, and he points out that the concern of these elites with the legal integrity
of decision-making can lead Justices to take legal integrity into account. We agree with him, and this claim lies at the
heart of our ongoing research. The
difficult question is whether that consideration substantially affects the
positions that Justices take as decision makers. We think it does, but we are not confident in
that judgment. The ability of Justices
to convince themselves that they are acting on a legal basis even when their
judgments are heavily colored by their policy preferences may reduce the
independent impact of legal integrity as a consideration. Indeed, the emphasis on interpretive methods
in the conservative legal movement that John McGinnis appropriately points to
makes it easier for conservative Justices to take positions that win praise
from a salient audience for taking positions that embody both good law and good
policy.
4.
Social movements arguably play an
important but underappreciated role in our story. This is the point Jack Balkin makes in his
illuminating post regarding the role of the broader conservative movement in
triggering the rise of the elite conservative legal network. We agree that
social movements may be a driving force for changes in elite opinion and
ultimately the Justices’ views. To that
extent, Jack makes a useful addition to our framework by extending the
causality back an important step: a full explanation of the course of policy in
the Supreme Court must take the impact of social movements into account. But we would not give as much emphasis to
social movements as Jack does. The
founding of the Federalist Society, its nurturing within the Meese Justice
Department, and its growth to become an important political force are a classic
example of important developments that occurred almost entirely in the elite
world. As John McGinnis puts it in his
post: “Elites determine which movement’s ideas turn into Supreme Court
doctrine.”
5. The
Company They Keep is principally a book about why it is that today’s
Court is now divided along partisan lines; the book notes that these
ideological/partisan divides are likely to persist but spends little time
talking about the future. In their posts, Linda Greenhouse and Sandy Levinson
provide important insights about the future. We think Sandy is correct in
noting that groups like the Federalist Society and American Constitution
Society are manifestations of an ideological divide that simply did not exist
when the elite legal establishment was largely homogeneous; correspondingly, we
agree that today’s ideological divisions are likely to widen before they narrow. We likewise agree with Linda Greenhouse’s
important observation that “what’s new” about our book is its insight that
today’s elites are polarized--a polarization that is likely to continue. Before the rise of the conservative legal
network, legal elites were overwhelmingly center-left and Court decision-making
reflected the dominance of center-left elites.
The leftward shift of Justice Harry Blackmun, for example, was a product
of its times just as the hardening of conservative and liberal positions on the
Robert’s Court is tied to today’s era of elite polarization. Relatedly, we
agree with Linda about the nexus between the Court’s partisan divide and the
Court’s legitimacy, that is, its ability to be seen as a court of law and not
another partisan branch. As far as
external perceptions of the Court are concerned, it may not matter whether or
not today’s Justices formally play to their political base or take steps to
demonstrate their independence, collegiality, and legitimacy. Presidential candidates, Senators, and the
public increasingly see the courts as comprised of Obama and Trump judges. This is not likely to change: our book makes
clear that political affiliation is highly salient in predicting the
ideological position of the Justices, and that fact will stand out for
observers of the Court as a central reality about the Court. Consequently, it may not matter to the
public, political establishment, or media that the Justices take steps to demonstrate
their collegiality and independence.
Neal Devins is Sandra Day O'Connor Professor of Law, Cabell Research Professor, Professor of Government, and Director, Institute of Bill of Rights Law at the College of William and Mary. You can reach him by e-mail at nealdevins at gmail.com
Lawrence Baum is Professor Emeritus of Political Science at Ohio State University. You can reach him by e-mail at baum.4 at polisci.osu.edu