The PEW Research Group’s surveys of public opinion in the United States document the fundamental regime change that has taken place over the last half century. Public opinion surveys taken during the Great Society found that elite Republicans and elite Democrats were more likely to agree with each other than with less educated and less economically well-off members of their parties on such fundamental civil liberties issues as racial equality and free speech. Surveys taken in the wake of Roe v. Wade (1973) found that a college education and an upper-middle class income better predicted pro-choice commitments than Democratic (or Republican) party membership. Pro-life advocates, these surveys found, were substantially overrepresented among both Democrats and Republicans with less education and income. This elite consensus, PEW learned in 2005 and 2011, had dissipated. When Barack Obama took office, elite Republicans and elite Democrats disagree with each other on all the major issues of the day, from national health care and same-sex marriage to the use of torture and gun control. Donald Trump’s presidency has only aggravated partisan and policy differences among American elites.
The Company They Keep: How Partisan Divisions Came to the Supreme Court details how this change in the structure of public opinion in the United States has changed Supreme Court decision making. Neal Devins and Lawrence Baum trace developments in the path of constitutional law to developments in the underlying constitutional politics in ways that should shape constitutional discussions as Americans enter the third decade of the twenty-first century. During the Great Society, when the vast majority of elites took liberal positions on most issues before the Supreme Court, the Supreme Court engaged in consistent liberal activism. Although the Court was described as having a more liberal and more conservative wing during this time period, the better division was between more and less liberal justices or, even better, between liberal proponents of judicial restraint and liberal proponents of judicial activism. When elites became polarized, courts became polarized. Democrats nominate committed liberals to the bench in large part because the vast majority of Democratic elites who have the traditional qualifications for federal judgeships are committed liberals. Republicans nominate committed conservatives to the bench in large part because the vast majority of Republican elites who have the traditional qualifications for federal judgeships are committed conservatives. A few moderates remain in the judicial pool, but one can get some sense of their relative numbers by comparing the number of elite law professors and legal groups who either insist that the due process clauses of the Fifth and Fourteenth Amendments does not protect abortion or that those due process clauses prohibit all proposed restrictions on abortion with the number of elite law professors and legal groups who insist that abortion should remain legal and heavily regulated. The court is more partisan, Devins and Baum detail, because politics is more partisan.
This partisanship is intensified by the sharp decline in commitments to judicial restraint. Devins and Baum insist that justices respond, consciously and unconsciously, to the elite social groups of which they are a part. Such liberal social groups as the American Civil Liberties Union and National Association for the Advancement of Colored Persons may have buttressed liberal attitudes among the justices during the Great Society. Nevertheless, as the pages of early Harvard Law Review “Forwards” highlight, very important liberal elites insisted that justices defer to elected officials. In this environment, liberal justices would be praised by some liberals and condemned by others in their social circles if they engaged in liberal activism or if they engaged in liberal restraint. Few such voices remain of the side of restraint. Calls for judicial restraint largely come from liberals urging conservative judicial majorities to be restrained or conservatives urging restraint in the few areas in which liberals might have a judicial majority. Liberals seeking praise from liberal elites strike down restrictions on same-sex couples and do not call for judicial restraint when states seek innovating methods for executing capitally sentenced prisoners. Conservatives seeking the approval of conservative elites strike down gun control laws and do not call for judicial restraint when universities use race in an effort to promote diversity.
Devins and Baum by and large present a balanced symmetrical view of partisan divisions on the Supreme Court that seems inspired by Newton’s Laws of Thermodynamics. For every action, there is an equal and opposite reaction. Republican elites become more conservative. Democratic elites become more liberal. Conservative Republican elites staff the federal courts with conservative Republicans. Liberal Democratic elites staff the federal courts with liberal Democrats. Conservative audiences help keep conservative Republican justices on the conservative straight and narrow. Liberal audiences help keep liberal Democrats on the liberal straight and narrow.
By offering this Newtonian understanding of constitutional politics, Devins and Baum become vulnerable to a critique of the attitudinal model of judicial behavior they purport to supplement or modify. Attitudinalists deduce from partisan divisions on the court that liberals vote their liberal political preferences and conservatives vote their conservative policy preferences. Two other explanations equally fit data demonstrating that the major divisions on the court correlate better with ideology than law. First, liberals vote liberal political preferences and conservatives make decisions based on law. Second, conservatives vote conservative policy preferences and liberals make decisions based on law. The data Devins and Baum used to demonstrate real partisan differences on the court is subject to similar interpretations. Partisan divisions on the court may be a consequence of Democrats becoming more liberal and Republicans becoming more conservative. Alternative, members of one political coalition and their supporting judges may have moved sharply in one direction, while members of the other have largely stood still. Neither attititunalists nor Devins/Baum explore at much length which of the alternate hypotheses best explains polarized voting on the court.
Much evidence supports an asymmetric rather than a symmetric interpretation of partisan divisions in American constitutional politics. Surveys consistently find that, until very recently, increased partisan gaps in Congress were almost entirely a consequence of Republicans becoming far more conservative than any generalized liberal movement among Democrats. David Pozen and Joseph Fishkin in their Columbia Law Review essay, “Asymmetic Constitutional Hardball,“ document how conservative Republicans are far more likely than Democrats to overthrow longstanding constitutional conventions, particularly when staffing the federal courts. Republicans appoint Federalist Society rockstars to the federal bench. Few liberals on the federal bench have any history supporting liberal causes in their previous lives. Many judicial “liberals” were prosecutors. Hardly any cut their legal teeth as public defenders or in legal service organizations.
Article I doctrine reflects an anti-Newtonian trend in Supreme Court partisanship. Liberal interpretations of Article I remain what they were in 1942 when the court decided Wickard v. Filburn. Congress has the discretion to determine the existence of a national problem and the discretion to determine the best solution to that perceived national problem. Conservatives over the last twenty-five years have developed various limits on Article I powers (“cannot regulate economic inactivity”) that did not exist in 1942 or, for that matter, in 1990. These developments structure contemporary constitutional politics. Liberals are committed to judicial restraint on Article I questions no matter what the composition of the lawmaking majority. Neither Ruth Bader Ginsburg or, for that matter, Jack Balkin, calls for a liberal judicial crusade against Republican tax and trade policies. Conservatives are chomping at the bit to strike down liberal exercises of Article I powers. Prominent conservatives express Article I opposition to the Green New Deal, various Obamacare policies and Elizabeth Warren’s proposed tax on wealth. A court divided only when liberals exercise Article I powers is a different institution than one divided no matter who exercises Article I powers.
The path away from asymmetric political and judicial polarization differs from the path away from symmetric political and judicial polarization. The path away from symmetric political and judicial polarization begins with moderates in both parties uniting against the extremes. Chief Justice John Roberts presents himself as such as moderate intent on holding back the more liberal and conservative factions on the court. Roberts, however, is no centrist. Rather, he is a product of an asymmetric polarization whose moderation consists of accomplishing radical Republican constitutional goals more slowly than desired by the other conservatives on the court. Treating him as a centrist enables Republicans to move the middle of American politics by taking ever more extreme positions. The path away from asymmetric political and judicial polarization begins with the victories by the Democratic Party so convincing that crucial Republican elites join forces with more moderate Democrats in order to prevent full control by the Democratic left. Stephen Breyer and Elena Kagan are the justices empowered by this more honest centrism. Whether Americans will take such a path is for the future to determine. The main lesson Baum and Devins teach is that the court will not become a forum of moderation that helps Americans reach compromises on hotly contested issues until political elites by some path largely outside the judiciary become more open to political compromises.