Balkinization: Siloed Justices and the Law/Politics Divide

Siloed Justices and the Law/Politics Divide

Guest Blogger

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).

Richard L. Hasen

In an eye-opening 2013 interview with journalist Jennifer Senior, the late Supreme Court Justice Antonin Scalia explained his “media diet.” He said that he read the Wall Street Journal and the Washington Times. He had dropped his subscription to the Washington Post because of what he saw as the newspaper’s “treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.” He also said he did not read the New York Times and that he got most of his news from talk radio.

Scalia’s media diet was a sign of things to come.

In Neal Devin’s and Larry Baum’s indispensable new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court, the authors convincingly argue that the two leading political science models of Supreme Court judicial decisionmaking—the attitudinalist model positing that Justices vote their values and the strategic model positing that Justices vote strategically to advance their values in light of the potential reactions of other strategic actors, such as Congress and executive agencies—inadequately describe the Justices’ decisionmaking. Devins and Baum offer a psychological model positing that Justices, like others, are the product of the world around them, and Supreme Court Justices travelling in elite social circles seek affirmation and approval from these elites.

In an earlier era, a common social circle of other judges, law professors, lawyers, at the top of the profession and journalists at elite news outlets helped shape the Justices’ values and occasionally rein in their votes, and that given an historic liberal bent of the legal elite (at least on civil rights and civil liberties issues), many Justices “evolved” over time toward the left on these issues. The authors write of the so-called “Greenhouse effect” where even some conservative Justices were swayed by coverage of the Court and its decisions by the New York Times’s former Supreme Court reporter, Linda Greenhouse.

But polarization has changed everything on the Supreme Court. Thanks to polarization in Congress and the Presidency, for the first time in Supreme Court history all of the conservative-leaning Justices have been appointed by Presidents of one party and all the liberal-leaning Justices appointed by Presidents of the other party. The most conservative Democratic-appointed Justice is more liberal than the most liberal Republican-appointed Justice.

As Devins and Baum argue, today’s politically polarized elite world both shapes and reflects how Justices view their jobs and decide how to vote, leading to a new polarization on the Supreme Court. Adam Bonica and Maya Sen’s work confirms that the leftward drift of lawyers overall is accelerating, giving plenty of affirmation for the liberal Justices on the Court. At the same time, the ascendancy of conservatives and libertarians in the Federalist Society has created an alternative set of elite actors to whom conservative Justices on the Supreme Court can look for ideas, law clerks, and social affirmation. Lower court judges brought up from Federalist Society ranks appointed by Republican Presidents frequently advance theories which would have been to use Jack’s term, “off the wall” in an earlier era, and reinforce one another as to the legitimacy of these new views.

This divide means fewer “evolving” Justices and greater division on the Court over time, with social and political issues from abortion to voting rights to the environment increasingly likely to follow the predictable lines one would expect if the Justices were voting their political and ideological orientations. Ironically, the attitudinalist model will increasingly look right because the Justices can more fully vote their values with knowledge of affirmation from their reflective social circles.

Devins and Baum have successfully captured the real phenomenon of polarization on the Supreme Court, even as the Court in its less ideological moments has achieved high rates of unanimity when the Court deals with enforcing uniformity of decisionmaking in the lower courts on non-ideological questions. When it is an issue that makes it to the front of the New York Times, the Justices will frequently now divide by ideology and party.

As to origins of the current divide, I would place more emphasis on Justice Scalia’s role in accelerating polarization on the Court. Not only did he present his originalist and textualist methods of interpretation as the only correct methods of interpretation, he engaged in a pugnacious and relentless effort to characterize those who did not subscribe to his orthodoxy as engaged in a politics rather than law. He trained his delegitimization of opponents even more on the Court’s moderate Republicans—Anthony Kennedy and Sandra Day O’Connor—than on the Court’s liberals. It is a model I expect at least Justices Gorsuch and Kavanaugh to emulate over time, if not in tone, in substance.

Scalia also revived the role of the “Celebrity Justice,” a phenomenon which Devins and Baum acknowledge near the end of the book. Scalia, and later Ruth Bader Ginsburg, became rock star Justices, drawing adoring crowds who celebrate these lawyers as though they were teenagers meeting Beyoncé. If we are thinking about the psychological effects on Justices getting affirmation that they are on the right path, cult-like worship can only make the assured even surer in their convictions. This seems especially dangerous during polarized times.

This moment of polarization could not come at a worse time. We are experiencing rapid technological change in which social media amplifies and reinforces existing ideas, and where people get exposed to information from increasingly siloed sources. The Justices are not going to be immune from this phenomenon.

So imagine a Federalist Society-oriented Justice getting bombarded at home and in the car and while listening to podcasts at the gym with talk of a scourge of “voter fraud” via FOX News, Breitbart, and Twitter, while a liberal Justice hears constant messages about the “myth of voter fraud” and attempts at voter suppression from the New York Times, MSNBC, and the like. When a case makes its way to the Supreme Court involving a restrictive voting law, the Justices come from their silos with different priors based upon how news has been presented to them, along with a set of legal precedents and presumptions which reinforce their own world views.

Facts should matter to these Justices, as facts always should matter when courts decide cases of social and political importance. But in an increasingly post-fact society, where political tribalism rules and is amplified by social media, and Justices are the product of the world around them, what hope do we have for reasoned deliberation and rational decisionmaking? Very little, as the already frayed line between law and politics stands ready to collapse.

Richard L. Hasen is Chancellor's Professor of Law and Political Science at the University of California, Irvine. You can reach him by e-mail at rhasen at law.uci.edu

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