Sunday, May 12, 2019

The Company They Keep: How Partisan Divisions Came to the Supreme Court by Neal Devins and Lawrence Baum

Our concern with social identity leads to a view about the relationship between Justices and the world outside the Court that diverges from the views incorporated in the major scholarly models of decision making. The attitudinal and strategic models each view potential external influences on the Justices as stemming from their interest in the substance of legal policy . . . . Rather, we think that Justices respond much more to the opinions of elite segments of society than they do to the public as a whole. The influence of elites on the Justices reflects the fact that elite segments of society are the most important to Justices' social identities, so that they are the primary focus of Justices' efforts to achieve the good regard of other people.

History is a weird thing. On the one hand, it can lend context to make us feel like the problems today are the same as those of yesteryear. On the other hand, context can also show that the problems of today are unique.

Today's problem is unique: the partisanship of the Supreme Court. It's not our imaginations. Starting in 2010, with Justice Kagan replacing Justice Stevens all the Republican-appointed Justices were to the right of the Democrat-appointed Justices. This partisanship has only gotten worse since. Professors Devin and Baum want to explain how we got here.

And the "new" approach the professors bring to the table is to apply the teachings of social psychology to the Justices. I'll let them explain what they mean by social psychology:
Unlike political science models that emphasize the single-minded pursuit of legal policy preferences, the social psychology model recognizes other goals that the Justices might pursue. Indeed, scholars have given attention to a wide array of goals that may be relevant to judges, including power, reputation, and harmonious relations with other Justices.
The professors go on to explain that Justices must care about the esteem in which they are held (our process more or less guarantees it), that before becoming Justices they were part of the elite class, and after becoming Justices they spend a great deal of time being surrounded by elites. All point in the direction that the elite opinion matters for Justices.

This is not new, the professors argue. Justices have always cared about elite opinion, and its always at least been a partial motivation for their decision-making. What is new, however, is the vetting process.

For most of the Republic, presidents did not engage in the ideological vetting that we currently see. Indeed, insofar as ideology mattered, there was not ideological divide among political elites: generally, elites supported laissez faire economics; thus, presidents worried less about ideology than political expediency.

But polarization among political elites caused Republicans to begin worrying about why their nominees were so often ideologically disappointing. By the 1980s, conservative elites were actively looking for a way to ensure that Republican-appointed Justices were, in fact, conservative. Against this backdrop, the Federalist Society was both born and invigorated. So important is the Federalist Society to Republican appointments that all the current Republican-appointed Justices have strong affiliations with the group.

For those wondering how this has played out with Democratic appointments, the professors explain that there has been less a focus on ideological vetting because Democratic presidents tend to focus on other factors that--perhaps not coincidentally--correlate with left-ideology. A consequence of this is that there is no "left" version of the Federalist Society with the same level of influence. (The American Constitution Society is doing its best, but they just don't have the same pull).

The authors note an extremely important point that curtails the impact of partisan division on the Court: the Justices care very deeply about the Court's institutional legacy, collegiality among peers, and narrowing decisions to have greater unanimity.

The book has left me chewing on many things, in many directions. I was originally motivated to read it with the idea that it would help me as an advocate: judges are my audience, so it would behoove me to know about their audience. After reading the book, I'm not sure how helpful it was for that purpose. The discussion is very on-point for the Supreme Court, but its applicability is complicated for other courts: the federal court of appeals, for example, is probably similarly affected, but its work is also less the object of media or public scrutiny. Going down to the state court level: I suspect in broad strokes the principle of legal elites applies, but defining who those elites are is much more complicated. The state context is even more complicated by the fact that in Nevada, for example, our judges are elected.

As I was reading the book, I began wondering about a different question: can an elite be created? The answer, of course, is "yes," as evidenced by the fact that it's exactly what the Federalist Society did. (In fairness to me, I hadn't gotten to that part of the book yet, so it wasn't obvious when I started wondering). A perpetual problem in criminal defense is how non-mainstream its principles are. Public debate about crime is rarely nuanced, and almost always concludes with legislation increasing punishment, removing procedural protections, and adding more law enforcement. Would it be possible to create an elite that appreciates these debates for what they actually are? And could a court be motivated to care about those elites?

This, I do not know. And, in fairness, we're now pretty far from the questions that Professors Devins and Baum were trying to answer.

To loop back: what are we to do with partisan division on the Court? "The changes that have occurred in the Court are not necessarily permanent. If the movement toward stronger polarization among political elites is reversed, that reversal can be expected to affect both the appointments of Supreme Court Justices and the partisan and ideological element of the Justices' social identities." LOL, right? They add, "Such a reversal seems quite unlikely in the near future." Double LOL.

Partisanship: You Might Not Like It, But There It Is.

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