Partisan Divisions in the Supreme Court: It's Likely to Get Worse (and There's No Reason to Think that it Will Necessarily Ever Get Better)

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. 

            Perhaps it is helpful in this context to compare judges to professors (which some of them have been).  To be sure, some professors are truly indifferent to what their students think of them; one suspects, however, that those same professors are extremely sensitive to their place within the wider academy, especially among those subgroups within a given discipline with which they identify.  Disdain by students is more than made up for by esteem from one’s professional peers, whether this is registered by publication in suitably prestigious journals (which, increasingly, are specialized), invitation to symposia, or election to leadership positions in one’s professional organization.  Or they may consciously adopt the role of “public intellectuals,” where the key datum is the receptivity of reporters or the editors of op-ed pages to solicit their views about pressing matters of the day.  Some professors might be glad to trade lessened professional esteem for greater adoration by students or public notice.  But few indeed are the lone-wolves who simply don’t care what anybody thinks of them because they are relentless Thoreauvians who march only to their own drum.  (And, frankly, it is highly unlikely that such idiosyncratic marchers would gain the requisite notice and support required to trigger appointment to the federal judiciary.)  So it is with judges, according to Devins and Baum.  

            What must be understood, they argue (and demonstrate) is that the real brilliance of the Federalist Society is to have created an entire community devoted to nurturing and supporting its members.  It takes a village not only to raise a child, but also to keep childrend within the fold as they leave the family nest and enter the wider world.  How, indeed, will you keep them down on the farm after they’ve seen (and experienced) Paree?  During law school, those who view themselves as beleaguered conservatives resisting the likely liberal hegemony can join together to share their objections to their liberal professors and, along the way, learn arguments that can be brought to bear against their views, whether, in the “old days” of Robert Bork the message of “judicial restraint,” or the new arguments for “judicial engagement” that rely on tendentious applications of purported “originalism.”  One becomes integrated into the world (or village) of the Federalist Society as a self-conscious alternative community to that enjoyed by liberals who were content to take advantage of the more welcoming gestalt of the American law school (and, for that matter, an ever-increasing number of American lawyers, who appear to be moving steadily left).  The Federalist Society is a “full-service” network, in which the extraordinarily important (and often impressive) law school chapters play the role of recruiting a genuinely lifetime membership, whether as a practicing lawyer or eventual judge.

            What this boils down to is that judicial nominees, having been socialized into the specifically conservative community, have not only internalized the values (and modes of argument) of that community, but also sensitized to the desirability for continuing approval and sense of welcome.  Concomitantly, this means that such nominees are increasingly indifferent, if not outright hostile, to gaining the esteem of those identified with the discredited left.  Just as FDR claimed to luxuriate in the hatred directed at him by the “economic royalists” who opposed the New Deal, one suspects that many contemporary judges (and Justices) who have risen through the Federalist ranks are more than happy to accept critiques directed at them by descendants of FDR and the New Deal “settlement” that was emphasized during the legal education of older readers of this posting.  Indeed, it may be damaging to one’s current career prospects if one is too often admired by non-conservatives.  One of the great scandals of “the list” compiled by Leo and his associates from which Trump has apparently drawn his nominees for the Supreme Court is that it did not include the widely admired (by liberals) Sixth Circuit Judge Jeffrey Sutton or former Tenth Circuit Judge (and professor at Stanford) Michael McConnell.  No one should confuse them with adherents of the political or legal left. .  Given my own views, I would not nominate either to the Supreme Court; nor, I suspect, would they be inclined to nominate someone like me.  That being said, I would support them if nominated by a Republican president and would trust them to behave honorably as justices, whether or not I would always agree with their opinions, which I surely would not.  In the contemporary world, though, both are viewed as too likely to stray from what has become conservative orthodoxy, as revealed, for example, in Sutton’s brilliant opinion for the Circuit upholding Obamacare.  (Similarly, of course, one wonders if John Roberts, whom I view as a faithful servant of the capitalist empire, would be truly welcomed at contemporary Federalist gatherings, given his ostensible betrayals in the two Obamacare cases.  Certainly, Donald Trump exhibits no respect for Roberts, whatever his willingness to rubber-stamp executive power in the Hawaii case.) 

            As Devins and Baum well argue, too many political scientist in essence view judges as  highly individualistic; all are attempting to optimize their political preferences (simple “politicians in robes”) or, perhaps, thinking strategically how to influence other political actors, including their own colleagues.  But methodological individualism reigns.  The opposite jurisprudential view, identified with Ronald Dworkin, is equally individualistic, as “Hercules” thinks exclusively of arriving at the legal “right answer,” presumably indifferent to the social consequences or degree of approval by other participants in the legal order.  Both legal realism and Dworkinian legalism must be supplemented by the careful attention to a judge’s social surround as developed by Devins and Baum.It is indeed foolish to ask what a judge had for breakfast in order to understand her vote; it is definitely not foolish, however, to ask what groups she looks to for sustenance to get through the stresses of our fractious society.  

            Richard Hasen and Linda Greenhouse both emphasize Antonin Scalia’s contempt for the Washington Post and New York Times.  It is almost literally unimaginable that an earlier justice, at least after 1945, would have been so completely dismissive of these two leading newspapers.  But, of course, that was an era when Richard Rovere and other more scholarly analysts described “the establishment”—or, in C. Wright Mill’s more sensationalist term, “the power elite”—that constituted America’s leadership class and, presumably, provided the basis for what would count as the “conventional wisdom” that one was expected to endorse (and implement when was asked to fill official leadership positions).  Also not coincidentally, that was the era when leading American historians described the country as under the sway of a “consensus” that set out the clear parameters of what was thinkable and what was, in effect, “foreign.”  Or one can simply think of the fact that there were only three television networks that dominated the airwaves, which allowed Walter Cronkhite in effect to speak for much of the country when he famously became disillusioned with the Vietnam War. (I was reminded at a recent lunch that LBJ kept three television sets tuned to the three networks in order to keep tabs on public opinion.  That made sense, then.  Today we know that Donald Trump is also an obsessive television watcher, but there can be no doubt whatsoever that he has no interest in watching the full range of what is available even if that were thought to be a good use of a president's time.)

            At a far more mundane level, one might also suggest that it was an era when members of the legal academy and the elite judiciary had some kind of symbiotic connection, so that judges cared what those “reviewing” the Supreme Court had to say.  This is the basis of the alleged "Greenhouse effect," referring to the Times' longtime analyst of the Supreme Court, though one might also think of the importance that used to be assigned to November issues of the Harvard Law Review.  The “Forewords” were quickly read, and then discussed, often providing the basis for further discussion of the Court at least in our classrooms.  Similarly, Herbert Wechsler, delivering the Holmes Lecture at Harvard in 1957 and announcing his devotion to “neutral principles,” shaped the debate over Brown v. Board of Education—and much else—for at least the next decade.  Finally, consider the lead paragraph of the column by New York Times writer Anthony Lewis on October 10, 1969, where he described Alexander Bickel’s own Holmes Lectures at Harvard, highly critical of the Warren Court, as “one of those intellectual events whose reverberations gradually disturb a widening circle…., an event in the law.” Whatever one thinks of Lewis’s assessment of those lectures, later published as The Supreme Court and the Idea of Progress, it is almost ridiculous to believe that any lecture anywhere or essay in the Harvard Law Review would today reverberate throughout and in some significant sense shape the entire academy, save, perhaps, to the extent that it would be viewed as just another sortie in the ongoing culture war over constitutional meaning. Just as there are no longer any television series that are in fact watched by “everyone” and thus constitute the basis for a common culture, there is no longer a common culture within the world of lawyers, whether they be fledgling law students or members of our highest courts. It may be telling that Wechsler and Bickel, like Philip Kurland in his truly vitrioic "Foreword" of 1963, although vigorous critics of the Warren Court, were not to be confused with "conservatives."  None would have dreamed of attacking the New Deal Settlement that gave Congress close to plenary power over the economy.  Today, of course, that Settlement has become profoundly unsettled, and most persons on Leonard Leo's list would gladly engage in further disruptions.

            Richard Posner in his 1990 volume The Problems of Jurisprudence basically ridiculed the notions that there was an autonomous domain of “legal reasoning” that could allow a basically homogeneous legal elite to grade the work of the Court by reference to the notion of “legal craft.”  Not surprisingly, Wechsler was a particular target, though this also certainly included Ronald Dworkin’s insistence that there were indeed “right answers” to legal conundra.  Instead, drawing on Holmes, Posner argued that law, especially at the level of the Supreme Court, inevitably required political (or ideological) decisionmaking about the best way of shaping the American future.  And as the judiciary became more politically and intellectually diverse, as was certainly occurring even by the time he wrote—and signified by his own presence, courtesy of Ronald Reagan, on the Seventh Circuit—one would expect to see ever more dissensus—and perhaps accompanying anger on the part of opponents who refused to credit the intellectual good faith of those who disagreed with them.  It is an unfortunate truth that Antonin Scalia’s most important legacy might be the introduction of “trash talk” to the Supreme Court, where he described those who disagreed with him, as in Obergefell¸ as not behaving like judges at all rather than merely having what he considered mistaken views of the law.  The ostensibly more nuanced Chief Justice Roberts was no better when he harrumphed in his own dissent in that case that the ruling by his colleagues had “nothing to do with the Constitution” and instead presumably represented only the raw power of five unconstrained pseudo-judges to work their will.  If Scalia or Roberts were truly serious, they would have demanded the impeachment of their colleagues for betraying their oaths of office, but, of course, they were instead only throwing red meat to their own bases, which certainly applauded their intemperance and added to the general national polarization. Indeed, Scalia especially rewrote the job description of Supreme Court judging by devoting his energies far more to building a vigorous movement of right-wing lawyers than to conversing with his colleagues and attempting to achieve some kind of compromise-based consensus.  It may be lovely that he and Ruth Ginsburg like to attend the opera together or share New Year's Eve dinners, but this did not translate into genuine respect for the possibility that she might be truly insightful as to what respect for the Constitution entails.

            So why would anyone believe that the phenomenon of polarization so well delineated by Devins and Baum will be rectified—assuming one thinks it’s a genuine problem with regard, say, to maintaining a belief in “the rule of law”—in the lifetimes of anyone actually reading this review? One of the realities of interest groups—whether or not they are identical with Jack’s notion of “social movements”—is that they often depend on the “Othering” of their opposition.  Just think of appeals for donations we get from whatever politically-related groups we might in fact support.  Although the Federalist Society has always treated me with courtesy and has asked me to be the “token liberal” on several of their panels over the years, I have no doubt that my general views are viewed with disdain; I assume the same views of the opposition are evidenced when members of the American Constitution Society get together in private, even if they, too, try to include conservatives within their public fora.  More to the point, we are all aware of the various advertisements that now appear on the occasion of any nomination to the Supreme Court.  Subtlety and nuance are not their central characteristics.

            One might conclude that Devins and Baum have written a profoundly depressing book.  We might try to figure out ways to limit the consequences of the socialization processes they so well describe, though, as with Madison in Federalist 10, one might well regard any potential cures as worse than the disease.  Or one might instead simply say that the process has always been present, but was largely unnoticed because a quite homogeneous elite was able to exercise undue control over who actually got appointed to our apex Court and how they would be evaluated thereafter.  A racist brute like James McReynolds was almost universally regarded as an aberration—recall that he refused to be photographed seated next to the Jewish Louis Brandeis—rather than as the poster-judge of a respected political party or social movement.  But one must recall that even George Washington was unable to procure Senate confirmation for all of his appointees, and that itself established a precedent for many future nomination battles.  One could, of course, analyze them in terms of the social networks who rallied both for and against particular nominees and the sensitivity of the judges to the support (or opposition) they received.  Still, there was in earlier years no equivalent to the Federalist or American Constitution societies, and it is now impossible, thanks to Devins and Baum, to ignore the institutional context of our present polarization.