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