October 27, 2011

Has Skepticism About the Court Gone too Far?

judicial interpretation


By Michael A. Bailey, a government professor at Georgetown University  and Forrest Maltzman, a political science professor at George Washington University.

When asked to comment on Scalia’s jurisprudence, Richard Posner recently said “I don’ think he or anyone can derive results in difficult, emotionally charged cases from the constitutional text.” 

When former future President Rick Perry turned his attention to the court, he wrote that it “adheres to the Constitution in appearance only and as a matter of necessity, finding in it or in previous case law the single nugget around which the court can marginally justify its policy choice to keep up the pretense of actually caring one iota about the Constitution in the first place.”

Add these to the pile of support for Segal and Spaeth’s attitudinal model which posits justices simply vote their unconstrained policy preferences.

But has skepticism about law on the Court gone too far? Are justices really unconstrained? InThe Constrained Court, Forrest Maltzman and I argue that justices are in fact constrained by the law and by other political actors. These are constraints, not straightjackets. Individual justices are affected differently by them, but they are real and to ignore them is to misunderstand the role the Court plays in the U.S. political system.

The first task is to figure out how to separate the legal wheat from rhetorical chaff that covers underlying policy motivations.  Sometimes efforts to determine who does and doesn’t follow the law descend into parody: We follow the law; they don’t.  (Here’s Senator Cornyn at Elena Kagan’s confirmation hearings discussing McDonald v. City of Chicago: “The five justices who voted to apply the Second Amendment to the Chicago gun ordinance relied on history and precedent. On the other hand, the four justices who voted not to apply the Second Amendment instead relied heavily on public policy arguments, the kind that you would find debated in the halls of Congress.”)

Our approach is not to parse statements but to use politicians to identify political aspects of Court cases and then to see if justices part ways from their political co-ideologues in legally predictable ways.  Consider abortion. After Roe v. Wade, precedent clearly implied a constitutionally protected right to abortion. Since politicians talk (and talk and talk…) about abortion, it’s fairly easy to identify where most come down on abortion as a policy issue. We can then use bells-and-whistles measurement tools of contemporary political science to assess which politicians justices usually line up with: Scalia ideologically resembles Senator Kyl, Ginsburg ideologically resembles Senator Durbin and so forth. If we find justices vote like their co-ideologues in Congress, the attitudinal model is validated. If we find justices part ways from their political co-ideologues to vote more liberally when precedent is liberal and more conservatively when precedent is conservative, we have identified legal effects.

This debate reverberates throughout the policy and scholarly worlds. For the Court, its legitimacy depends in no small measure on the perception that justices are impartial umpires following “law all the way down”.  In the academy, there has been a traditional stand-off between political scientists skeptical of the law and lawyers skeptical of political scientists.

Analyzing Supreme Court voting from the 1950s onward, we find that virtually every justice is influenced by at least one legal influence (and it’s only the ones for which we have very little data – Jackson, Vinson and Fortas --  that we can’t say this). Law school faculty across the country can breathe a sigh of relief – law matters even, heaven forbid, at the highest court of the land.

We do not presume to be able to assess all legal factors, but we do get at several.  Every justice appointed since Burger has been influenced by precedent except for Thomas, Scalia and Blackmun (our data precede Sotomayor and Kagan’s accession to the bench so we can’t assess them). Justices in the 1950s deferred to Congress even when it produced policies they did not agree with, a characteristic of that has become a bit of a quaint historicism as modern justices are uniformly uninfluenced by this value.

What explains the variation in these legal values? It’s beyond the scope of this summary, but we spend a full chapter trying to unpack whether it is previous legal experience or some kind of meta-politics in which the political trends of the day affect which legal values justices hold which, in turn, do in fact constrain justices to at times vote against their policy preferences.

Of course, law is not the only possible constraint on justices. One of the major intellectual contributions of contemporary political science has been to suggest and develop the manner in which Congress and the president could constrain the Court (see here, here and here).  It is not a simple account whereby the Court always does what these other actors want, but a highly contextual one in which the Court is  only constrained when it is outside the range of what Congress and the president desire. 

We again find constraints on justices. Many are strategic in the sense that their voting differs systematically depending on the political context.  We also find that while it is the case – as explained above – that justices from the contemporary court tend not to defer to Congress as a general principle, these justices do defer for strategic, practical reasons. That is, when the political system gives them the flexibility, modern justices are more willing to buck Congress; but when the political branches can more credibly threaten to punish the Court, these modern justices are more likely to cave than their post-war forebears.

The Supreme Court is a political body and no reasonable analyst can deny it. However, it is also a legal entity embedded in a larger political system and it would be equally unreasonable to deny that.