Saturday, April 06, 2019

The Political Theory of a Balanced Bench

Frank Pasquale

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).

The Company They Keep is engagingly written, and thoroughly researched. Devins and Baum (DB) focus on what might be dubbed the “puzzle of Supreme Court partisanship.” In the mid-20th century, many justices trended toward more liberal stances, acknowledging and sometimes conceding the demands of rising social movements. By the 2010s, SCOTUS has frozen in partisan amber. DB ask us to consider why the change occurred. They give us at least three reasons why SCOTUS is a court “in which ideological divisions follow party lines.”

First, partisan polarization in the US as a whole ensures that SCOTUS only includes “justices whose ideological views reflect the dominant views in the appointing president’s party.” Second, serving with life tenure, the justices are insulated from commonplace political pressures, and “take cues primarily from the people who are closest to them…and these people are part of political, professional, and social elites.” Given the rise of the conservative legal movement, DB argue, that social world has been tilted rightward for conservative justices. Third, given its identity as a court, SCOTUS must (appear to) decide most cases in a professional and neutral way, adhering to standard methods of constitutional and statutory interpretation.

Most of the attention the book has received has revolved around the second claim, about networks and reputation. Baum’s 2006 book, Judges and Their Audiences, analyzed the social networks of the justices, and their reputations within them. In the mid-to-late 20th century, such social networks were permeable enough to be susceptible to something like the “Greenhouse Effect”—the famous theory (first advanced by conservatives) that all the justices vied for the approval of New York Times reporter Linda Greenhouse, or at least for the favor of those Georgetown dinner party hosts who read her articles. (In 2006, Baum observed that “the evidence on voting change is mixed, but for the most part it is consistent with the claims of a Greenhouse effect.”) Now, the conservative and liberal justices and their families live in different social (and perhaps even social media) universes. The filter bubble affects not only online but also offline life, and has inoculated the hegemonic justices from the types of appeals that might once have softened their positions on voting rights, economic justice, race relations, and numerous other politico-legal issues.

Given polarization, it is hard to make an argument to an imagined universalist public sphere based on DB’s research. Reception of DB’s book will probably split along certain lines, depending on one’s own ideology and theory of politics. Conservatives will likely see the elite social network effects documented by DB as a balm, not a curse. Whatever their effects on SCOTUS’s ability to appear fair and impartial, they have steeled appointed justices to promote the policies of the president who appointed them. Liberals and leftists will share Senator Whitehouse’s concern: that there “is an operation funded by dark money and designed to remake our judiciary on behalf of a distinct group of very wealthy anonymous funders.”

Deeper theories of politics also come into play. On the one side are deliberative democrats and technocrats, who sincerely believe that politics revolves around meaningful dialogue among competing interest groups, within bounds largely determined by experts (such as economists, central bankers, or scientists.)* On the other are Schmittians, who believe that “The specific political distinction to which political actions and motives can be reduced is that between friend and enemy.” For the Schmittian, politics is not about reasoning together about the common good, or even pluralistic logrolling ala Dahl. Rather, it is a struggle for domination and, very important to our times, entrenching domination with new sets of rules that tilt a zero-sum playing field ever more to one’s own advantage.

For both deliberative democrats and technocrats, the story DB tells is a tragedy. What was once heralded as a neutral institution has transmogrified into a political branch--or, worse, a bevy of Platonic guardians with the ideological predilections of a Tory House of Lords. But for the Schmittian, the story is one more confirmation of a grimly pragmatic political theory. Sovereign is he who makes the exception. SCOTUS decides when the state can act in exceptional ways, or must stop and reconsider its action. From a Schmittian perspective, Mitch McConnell was entirely right to stop the Garland nomination and hold open a seat for Gorsuch. President Obama, here as in so much else, was playing the deliberative democratic game, trying to build political community around a centrist nominee who was relatively aged (63, the oldest Supreme Court nominee since Lewis F. Powell, Jr.). McConnell realized (and helped ensure) that the game had changed.

We might divide the political world into four, based on deep and more immediate theories of politics: Schmittian rightists and leftists, and deliberativist conservatives and liberals. I leave it to the reader to decide the relative number of each in the two political parties, and in SCOTUS. Such divides may explain a great deal about the current state of politics, and one can easily model self-reinforcing dynamics of rightward drift given asymmetric polarization.

DB’s book should inform critical questions of our time, such as the legitimacy of adding seats to the Supreme Court. Schmittian rightists will vigorously fight such a plan (as long as they like the current SCOTUS majority more than the likely alternative), and moderates are appalled by the idea: there is an enduring desire to have some set of foundational norms that will always be respected. But when the people disadvantaged by such norms are harmed or neglected enough, they have little reason to respect those norms. Even the US constitution itself, as Madison observed, is a “parchment barrier” to despotism, breached if subject to extreme stresses. Powerful interests may be advantaged by a certain set of rules, but if they press their advantage too hard, they risk destroying the societal consensus that gives the rules they love legitimacy. Rather than rules or rulings, it is the process of societal consensus building—of respect for others, adjustment to change, and reconstruction of expectations based on shared circumstances—that is the true foundation of social order. That process of consensus building is rotting now. Like much of the U.S.’s crumbling infrastructure, we both sense its decay, but also find it hard to predict exactly when crisis will occur.

How can we reconstruct such consensus? One option is to double down on the old Wechsler-ian quest for "neutral principles." But if we take DB’s book seriously, we must think of SCOTUS as inevitably, at least in part, a representative institution. That conclusion supports a notable idea for court reform: That members of the two dominant parties each choose five justices, who in turn must unanimously agree on five more justices, in order to constitute a 15 member SCOTUS. Such a structure of decisionmaking, advanced by Daniel Epps and Ganesh Sitaranam as the “balanced bench,” would at least require justices of different parties to come together on a common project of self-governance. Perhaps they would develop more robustly diverse and deliberative networks as a result. We can still wonder whether an institution likely to be made up primarily of the wealthy can adequately represent the people. Jeffrey Rosen raised concerns about a Supreme Court, Inc. back in 2008. But it would almost certainly be more diverse and inclusive than the current iteration of SCOTUS.

*I know this summary statement mashes together the views of deliberativist/republican theorists, and those of pluralists, who were taught to me as the distinctive poles of democratic theory. Back at the dawn of the end of history (early 1990s), this account of political options felt exhaustive; many countries did not meet such standards, but I and many others assumed all trended toward liberal democracy. However, by the late 2010s, a larger political theory spectrum contrasting a composite democratic theory with more authoritarian approaches to politics seems a more appropriate matrix for plotting enduring options in social order.

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