Thursday, July 30, 2020

Conservative Judges Doing Law All the Way down are Politicians in Robes

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Aaron Belkin

I was honored to be asked to review Mark Tushnet’s Taking Back the Constitution, a brilliant and well-written book that I enjoyed reading. His crystal-clear mapping of the damage that conservative justices have wreaked over the past generation, his sober and troubling assessment of where a modern, conservative Supreme Court might take us next, and his devasting critique of originalism—or, as he shows, originalisms—are quite valuable. At the same time, Tushnet overlooks a critical distinction between how liberal and conservative judges in the Roberts era (2005-) make decisions, and the elision calls into question some of the central tenets of his argument.

My critique of Tushnet’s book depends on a partisan analysis that I elaborate in a recent Pepperdine Law Review article. My argument is that the GOP’s current configuration consists of an alliance between capital (corporations and elites) and resentment or paranoia (for example white supremacists, xenophobes, sexists, homophobes, and gun enthusiasts). Capitalists manufacture paranoia to drive resentment voters to the polls, where they elect representatives who head to Washington and cut taxes on the rich while deregulating the economy. It’s a simple strategy that’s well understood.

Perhaps less well understood, however, is the relationship between the GOP’s electoral strategy and its commitment to lying. Neither the capital nor the resentment wing supports policies that the public endorses, so Republicans must mislead or lie to themselves and to the public whenever they talk about policy. Economic examples include George W. Bush’s naming of his give-away to oil, gas and coal companies as the ‘Clear Skies Initiative’; the GOP’s insistence that its 2001, 2003, and 2017 tax cuts were for the middle-class; and the framing of the 2009-2010 health care debate in terms of death panels, as if private insurance does not ration.

Nor can the resentment wing of the GOP speak honestly about the paranoid basis of its preferences. Gun enthusiasts cannot acknowledge that they like firearms, in large part, because they fear black people. Pro-lifers cannot admit that they oppose abortion because they are afraid of what would happen if women controlled their bodies. (If they truly supported life, they would fight climate change). Anti-statists of the Ruby Ridge variety cannot admit that they oppose the public sector because they think government programs are for black people. Xenophobes cannot admit that they oppose immigration because they think brown people are dirty. (How often does one hear them oppose illegal immigration from Canada?) Religious extremists cannot admit that they oppose feminism and LGBTQ people because they are afraid of out-of-control sex. Interestingly, Donald Trump occasionally does tell what he believes to be the truth about the paranoid basis of GOP politics, such as when he says that he thinks Mexicans are rapists.

Neither the capitalist nor the resentment wing of the GOP can tell the truth, and that’s why the party is structurally committed to lying (or willful ignorance, if you prefer). This has been obvious for at least a generation. When Newt Gingrich took over as House Speaker in 1995, one of his first steps was to dismantle the Office of Technology Assessment and reduce funding for the Congressional Research Service, echoing how opposition to evidence-based policy is the flip side of the coin of a commitment to lying. More broadly, Richard Hofstader noted the very close connection between willful ignorance and the politics of paranoia in his classic study of American politics. He observed that, “What distinguishes the paranoid style is not, then, the absence of verifiable facts…but rather the curious leap in imagination that is always made at some critical point in the recital of events.” That’s the modern GOP, and indeed modern American conservatism, in a nutshell.

My specification of modern American conservatism as an instance of the politics of paranoia that’s dependent on willful ignorance applies to the GOP and Republican politicians, to be sure. But the relevant players and institutions are much broader than that, and include the Federalist Society, conservative networks described by Devins and Baum, the Heritage Foundation, the Koch family, Fox News, and many other individuals, social networks, and organizations. My argument characterizes a broad political project that includes the GOP and GOP politicians, but also donors, journalists, judges, voters, think tanks, NGOs, media outlets, and more. They’re all part of the same project to advance the interests of capital via the amplification of paranoia and resentment.

What light might this partisan analysis shine on Tushnet’s book? Tushnet starts with an informative analysis of how judges reach decisions, a two-step process he describes (citing Justice Kagan) as “doing law all the way down” [9]. To begin, according to Tushnet, judges read briefs, bench memos, and lower court rulings to “form a first impression of the case,” identifying how they want the case to come out. Tushnet notes that many factors including policy preferences, constitutional philosophies, political agendas, personal experiences, and social cues may shape first impressions [10-11].

Then, assuming they decide to stick with their first impression, judges figure out how to “work through the materials to that conclusion” by “deploying a slew of moves.” [12; 13] Tushnet observes that “judges who are really good at working with the legal materials can find ways to get where their first impressions pointed…[W]hen a talented judge cares about the result and is willing to do the work, she or he can get there.” [14] Tushnet says that doing law all the way down is “the best description of law,” and is “just a compilation of moves or ‘argument forms’” that include distinguishing the case at hand from potentially relevant precedent, and identifying analogies in similar cases, status, or constitutional provisions. [16] He notes that one jurist counted approximately 60 distinct argument forms.

Conservative and liberal judges tend to adhere to divergent values, to be sure, but Tushnet doesn’t appear to believe that systematic differences distinguish how they reach decisions in difficult, high-stakes cases. While first impressions of liberal and conservative judges may be informed by politics, he says that “judges are still doing law, not ‘merely’ enacting their preferences…Getting from an initial impression to a result is what all judges have to do all the time, and sometimes the initial impression is related to political beliefs” [14;16] Neither side, according to Tushnet, just calls balls and strikes. Neither side is “just making sure that people play by rules whose interpretations is obvious.” [17]. Neither side is guided in any deterministic way by doctrine. Both sides let political beliefs influence rulings.

As much as I enjoyed reading and learning from Taking Back the Constitution, Tushnet’s conflation of how liberal and conservative justices decide close, important cases isn’t persuasive as a characterization of Roberts-era decision making. I would argue that when conservative judges do law all the way down in difficult, high-stakes cases, their moves and argument forms typically depend at some critical stage on willful ignorance (lies) and/or the concealment of values that are unacceptable to name. When liberal judges do law all the way down, by contrast, their moves do not depend on disregarding facts or concealing values that are unacceptable to name.

Tushnet does acknowledge that a judge’s slew of moves can include a “silly” point [15], but silliness doesn’t capture the majority’s reliance on willful ignorance during the Roberts era. Consider, for example, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which misconstrued a Colorado official's isolated statement as widespread anti-religious bias; Trump v. Hawaii, which overlooked the implications of discriminatory intent for evaluating facially neutral statutes, and which, as Tushnet argues elsewhere, is “no less racist than Korematsu.”; Shelby County v. Holder, which advanced the false assertion that voters of color are no longer subject to systematic efforts to suppress their votes; Citizens United v. FEC, which was based on the dubious assertion that the appearance of influence or access would not cause the electorate to lose faith in our democracy; and RNC v. DNC, which was premised on the notion that, despite concerns about COVID, the recent Wisconsin primary was an ordinary election. Or, to take more patterned examples, consider Justice Roberts’s agreement at his confirmation hearing that Roe v. Wade is settled law in light of his subsequent 100 percent anti-choice voting record (until June Medical Services) in cases involving reproductive freedom, as well as the conservative majority’s jurisprudence of white racial innocence, which is blind to racism’s very existence.

Theory, by definition, entails simplification, its curse and its value. I’m aware that I’m painting in broad brush strokes, and that there are exceptions to these patterns. Conservative judges occasionally vote in a liberal direction in high-stakes cases if they conclude that willful ignorance they would need to deploy and/or values they would need to conceal to reach politically preferable outcomes might get exposed and produce unacceptable blowback. Justice Roberts’s rulings in Sebelius and Department of Commerce v. New York come to mind as possible candidates. Sometimes, they vote in a liberal direction because their values evolve. Sometimes, they vote in a liberal direction if doctrine steers them toward a progressive trajectory. Perhaps Neil Gorsuch’s commitment to textualism drove his recent decision to extend employment nondiscrimination protections to transgender Americans, not just gays and lesbians. Perhaps Gorsuch feels genuine empathy toward transgender victims of discrimination. Perhaps he was worried about political blowback. Perhaps he was trying to lower the temperature of the national judicial reform conversation before the Court resumes its pursuit of arch-conservative values. We just don’t know.

What we do know is that in 80 split-decision civil cases between 2005 and 2020 in which GOP donor interests were clear, the Supreme Court voted in the direction favored by GOP donors 100 percent of the time (80-0). Senator Sheldon Whitehouse observes that in about half of these cases, the conservative majority disregarded conservative judicial doctrine to reach a decision favored by GOP donors.

Or, consider the question of precedent. During his 2005 confirmation hearings, Roberts emphasized his respect for precedent, affirmed that flaws in precedent are “not enough…to justify revisiting it,” and underscored “the values of respect for precedent, evenhandedness, predictability, stability.” But during his first 14 years as Chief Justice, Roberts presided over 21 precedent-overturning cases and voted to overturn precedent in 17 of them (81%), making him the second most frequent member of the majority in precedent-overturning cases. Perhaps even more telling, Roberts’s voting record in precedent-overturning cases is among the most partisan of any justice in the modern era. In 15 precedent-overturning cases with partisan implications before the recent term, Roberts voted for conservative outcomes 14 times (93%). Then, all of a sudden in June Medical Services, Roberts invoked precedent to reach a liberal conclusion. Was the case distinguishable because its relevant precedent was only a few years old? Maybe. But doesn’t it seem more plausible that Roberts’s vote was a cynical reflection of concerns about the 2020 election and the possibility that Democrats might reform or expand the Court?
The relationship between the GOP’s commitment to willful ignorance and the distinction between how liberal and conservative judges do law all the way down has important implications for one of Tushnet’s central arguments. Tushnet makes the case for progressives to embrace popular constitutionalism as a long-term response to the current interregnum between constitutional orders. He notes that there have been two constitutional orders since the 1930s, the New Deal/Great Society order and the Reagan order, and that we may be on the precipice of a new order today. But understanding this moment through the lens of constitutional orders conceals the urgency of what’s at stake. The critical battle is not between prevailing legal or doctrinal approaches and it won’t take place in court. The GOP has not engaged in asymmetric hardball because the Reagan constitutional order is dying [237]. The central question of this moment is not whether a new constitutional order will emerge, and if so, what it will entail.

This moment, rather, is about whether the GOP that has radicalized over the past 50 years will kill democracy before Democrats save it. The urgent question is whether Democrats will return to power in 2020 and play hardball by modifying Senate rules including the filibuster, blue slips, unanimous consent, and holds; expanding federal courts including the Supreme Court; and enacting an aggressive version of HR 1 that adds 40 million voters to the rolls and grants statehood to Washington DC and Puerto Rico, among other pressing reforms. Democrats probably have one chance to pull off this trifecta, in that demographic shifts may preclude them from achieving a Senate majority in 2022 and beyond. If Democrats fail to return to power in 2020 and achieve this trifecta quickly, they may still win elections from time to time, but the GOP will continue to sabotage democracy, slowly over time, until the US arrives at a tyrannical outcome. (I develop these arguments in the Pepperdine Law Review article mentioned above, and I encourage those who doubt it to watch the House Oversight Committee’s July 2018 hearings with Peter Strzok).

Tushnet does acknowledge the distinction between democratic decay and transitions to new constitutional orders [233]. But he overlooks that modern conservatism’s commitment to willful ignorance, including the way in which conservative judges do law all the way down, is a 5-alarm fire and a clear indicator that democracy is hanging by a thread. This moment is best characterized in terms of deep and dangerous democratic decay, not as an interregnum between constitutional orders. As historian Timothy Snyder argues, once a political movement is committed to lying, tyranny can ensue. There’s a good chance that the constitution won’t mean much pretty soon, and if democracy dies, we won’t look back on this era as an interregnum between constitutional orders.

Tushnet advocates for a long-term strategy, popular constitutionalism, and discounts short-term hardball because winning at hardball would require “that a dynamic new political order gain control of both houses of Congress and the presidency for an extended period” [239]. But if Democrats win in 2020 and pull off the trifecta described above, the GOP may have to de-radicalize at least somewhat to return to power. If Democrats fail to return to power, or if they do return to power but wait to play hardball, they might not have another chance.

Aaron Belkin is director of Take Back the Court and Professor, Department of Political Science, San Francisco State University. You can reach him by e-mail at belkin at

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