John O. McGinnis
In The Company They Keep: How Partisan Divisions Came to the Supreme Court, Neal Devins and Lawrence Baum provide a compelling, elegant, and permanent addition to the political science of the Court. In their view, the Court is substantially more influenced by elite than by popular opinion. The great strength of their book flows from arguments supported by both theory and empirics.
Theoretically, they
provide strong reasons based in the psychological literature to show that the
justices, like others, are motivated to maintain the approval of those they
consider peers and allies. Moreover, the justices have little reason to pay
much attention to popular views, because ordinary people do not have much
understanding of what the Supreme Court does and even their limited understanding
does not much affect the long-term popular assessment of the Court. Thus, the
justices do not generally need to pay attention to popular opinion to preserve
the Court's political standing. The authors then turn to the evidence in Court
decisions, showing that over a range of cases, particularly those in civil
liberties, that Court majorities have hewed much closer to the views of elites
than of the people as whole.
The authors frame their thesis as a necessary
corrective to claims, like that made in Barry Friedman’s The Will of the Majority, that justices generally follow popular
opinion, and theirs is indeed a much more persuasive explanation of the wellsprings
of the justices’ behavior. It is also a challenge, although the authors do not
treat it as such, to the idea that popular social movements are the engine of constitutional
jurisprudence. There are many social policy movements—such as the Tea Party,
Occupy Wall Street, and those favoring homosexual rights, gun rights, or the
elimination of the death penalty. Others social movements, like those for the
right-to-life and for abortion rights, directly conflict. Elites determine which movement’s ideas to
turn into Supreme Court doctrine.
The authors then marry this general analytic
framework for the justices’ behavior with the particular political reality of
our time: increased polarization, particularly among elites. If justices
respond to the views of their particular network of elites and those different elites
have become more extreme and opposed in their beliefs, their divisions will come
to envelop the Supreme Court. Hence the subtitle of the book.
This subsidiary thesis also helps clarify why
Republican Presidents from Richard Nixon to George H.W. Bush had limited
success in moving the Court to the right. As the authors demonstrate, during
most of that time the legal establishment was relatively unified and leaned to
the moderate left. Thus, it was not surprising that so many of the Republican
justices drifted leftward during their tenure, sometimes dramatically as in the
case of Justice Harry Blackmun. I would add that the difficulty of bucking the
legal establishment is not a new phenomenon. In the early 1800s, twenty-four years of
Democratic Republican control of the Presidency did not much change the
Federalist orientation of the Supreme Court, given the Federalist tilt to the elite
bar of that era. Thomas Jefferson no less than conservative Republicans of recent
decades lamented the revolution that wasn’t.
As persuasive as is the book, its account could be
richer if the authors did not have such a thin view of the content of law.
While they frequently and correctly point out that the justices of the Court do
not act like partisan members of Congress, because they pay attention to the
law, they do not give any substantial description of what law is, particularly
as it relates to interpreting the Constitution. The authors in fact refer to
the justices’ “ideology” throughout the book, almost never to their jurisprudence.
They make relatively few references, for
instance, to originalism, although the rise of originalism marks a significant
change in jurisprudential theory both on and off the Court during the prime
period for their analysis (from the Warren Court to the present day).
It is an odd slight, particularly because a deeper
discussion of jurisprudence could be used to support their basic thesis, round
out their narrative on the rise of ideological divisions, and provide fuller
content to their claim that a divided Court does not resemble a divided
Congress. First, a focus on jurisprudence
confirms their view that justices respond to elites. Legal elites can have a
jurisprudence, but the vast majority of the people never do. And the justices
appointed by Republican Presidents are increasingly distinguished by their
embrace of originalism. This development is obvious in the case of Justices Antonin
Scalia, Clarence Thomas, and Neil Gorsuch. But as I have argued elsewhere Chief
Justice John Roberts and Justice Samuel Alito have pretty strong originalist
tendencies. [1] Even if these latter justices respect
precedent more, they follow originalism in cases of first impression, as in NLRB v. Noel Canning, and use the
original meaning as a regulative ideal doctrinally, as in Free Enterprise v. PCOB, to cut back on non-originalist precedent.
Second, originalism helps explain the divergences of
many Republican justices from conservative or Republican ideology, showing that
the tug of jurisprudence can pull justices away from the political ideology of
the politicians of the party that appointed them and toward results favored by
justices appointed by the opposite party. In areas of criminal law, notably in
cases concerning the Confrontation and Trial by Jury Clauses, Justices Scalia
and Thomas sided with criminal defendants, because they have accepted expansive
originalist arguments. Justice Gorsuch is already showing signs of following
them. And a focus on originalism suggests that some of the disagreements on the
Court are not policy differences rooted in ideology, but legal differences
rooted in jurisprudence. Scalia’s harsh comparison of Justice Kennedy's opinion
in Obergefell with a fortune cookie, noted
by the authors, was a complaint about Kennedy's abnegation of jurisprudential
formalism, not about the substantive issue of same-sex marriage.
Originalism also helps explain why and how the
modern divisions came to the Court. Most Presidents do not articulate a
jurisprudence. A few, like Thomas Jefferson, Franklin Delano Roosevelt, and
Ronald Reagan, do. By combining political heft with an interest in changing the
fundamentals of the law, rather than just decisions they may dislike, these
Presidents began a process of reorienting constitutional law as law, perhaps even
shifting its rule of recognition.
The Federalist Society’s crucial influence, which
the authors rightly put front and center in the story of today’s transformation
of the Court, is also largely a jurisprudential story. The Federalist Society
created a counter-establishment that broke up the relative unity of the legal
elite, but it cast its opposition in term of legal ideas, not in political
ideology or partisanship. Not only are
Society’s principles jurisprudential, its members, ranging ideologically from
social conservatives to pure libertarians, often disagree sharply on policy. And members of the Society rose up against the
Harriet Miers nomination, not because of suspicion of her ideology (she was by
all accounts a conservative Republican), but because she had no jurisprudential
track record. Thus, the crucial
mechanism by which legal change came to the Court was jurisprudential.
This book’s central thesis not only has significant
implications for the political science of the Court, but also for the description
of the United States’ political regime—a point which the authors might have
done more to underscore. If the Supreme
Court is an elite largely influenced by elites, the United States is not a
democracy in the classical Aristotelean sense, but a mixed regime where
aristocrats and plebes both participate in governance. Today’s elites do not
generally possess substantial land or other forms of fixed wealth. Instead, in
our meritocratic society the elite is defined by high I.Q. and distinguished
educational and career performance. And the Court today perfectly represents
that aristocracy, given that all its members attended either Harvard or Yale
Law School. That description may be difficult to accept for a nation whose self-image
is politically egalitarian, even populist. Nevertheless, it captures an
uncomfortable and essential truth about the judicial branch that this excellent
book makes impossible to deny.
John O. McGinnis is George C. Dix Professor in Constitutional Law at Northwestern-Pritzker School of Law. You can reach him by e-mail at j-mcginnis at law.northwestern.edu