Everyday Politics Blog

What Does the Public Want In A Justice?

By Scott Lemieux

It has become common for pundits to bemoan the lack of substantive content in the answers given by nominees to the Supreme Court at their confirmation hearings.   Indeed, the extent to which nominees have perfected the art of making sure the hearings yield little useful information about their judicial philosophies once provoked the current nominee to criticize the process (criticisms she has revoked now that she is a nominee herself.)   

Why have the hearings become so bland?   Although the broadly worded clauses of the Constitution that generate the most controversy permit multiple reasonable interpretations, and hence allow a lot of judicial discretion, the central theme of contemporary hearings is that Supreme Court justices simply apply the law (or, in current Chief Justice John Roberts's words, act as a "neutral umpire.")   The assumption of nominees must be that -- whatever the truth -- the public will not accept the idea that a judge's values may affect their decisionmaking, even if most legal observers are well aware that "the law" in itself cannot determine how judges will choose among multiple interpretations.

According to John Sides, however, the extent to which the public is unwilling to accept a more complex view of judicial decision-making is actually highly questionable.   Whatever assumptions are made by pundits, the public largely accepts the idea that empathy might inform judicial decision-making:

The Washington Post tells me that in today’s hearing, Elana Kagan “sidesteps empathy question, says ‘it’s law all the way down,’” which leads the reporter, Paul Kane, to say “So much for the empathy standard.”

I know some people who will be disappointed. The American people. About 68% of them, to be precise. That is the percentage who said in a 2009 survey that it was “very important” for Supreme Court justices to “be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.” Only one other quality out of a list of 12 — “Uphold the values of those who wrote the U.S. constitution long ago” — was judged very important by more respondents (74%). Only 8% of the sample said that empathy was not important at all. Empathy also attracted the support of both parties: 77% of Democrats and 61% of Republicans said that it was very important.

It is understandable, following the defeat of Robert Bork, that nominees have become risk-averse when it comes to making controversial statements.    But this data suggests that they may have more leeway than current practice suggests.   

The President and Executive Power

By Scott Lemieux

Some court observers who might generally be considered allies of President Obama have expressed concerns about the solicitude for executive power shown by Obama's second Supreme Court nominee, Elena Kagan.    There is at least some evidence for claims that, while Kagan is unlikely to support the strongest claims of executive power advanced by the Bush administration, she is likely to give a much wider berth to the executive branch than many liberals and libertarians would prefer.

Beyond Kagan's (very thin) record of views on the subject, there is a more general reason for suspecting that Kagan might disappoint some supporters of the President on executive power.   The punchline to the article I discussed in my last post is that the intersection of law and politics can be expected to lead to judges who are deferential to claims of executive power, especially during wartime.  According to Graber, from a standpoint of judicial behavior, the process might be expected to look like this:

• "Judge Strategy," whose overriding concern is insulating the Supreme Court from political pressures than might undermine judicial power in the long run, can be expected to favor executive power in most circumstances.    There are some exceptions -- as two landmark Supreme Court opinions have demonstrated, when the president and/or the war the president supports are relatively unpopular, the Supreme Court has shown some willingness to constrain the power of the executive branch.   Still, there is generally a "rally effect" on public opinion during times of war, and as result strategically-minded judges are likely to tread with extreme caution in evaluating claims of executive power during wartime.    
• "Judge Attitude," who decides cases based on her policy preferences.  In theory, this judge would favor controversial claims of executive power half the time, but as Graber notes in practice "attitudinal" judges are likely to favor executive assertions of power much more frequently.   The president, after all, does the nominating, and is likely to "screen" for justices who will be sympathetic to future assertions of executive power.   The effect is likely to be heightened during wartime, or during "reconstructive" administrations in which the president is trying to expand his political authority.    
• As a result, as precedents build, "Judge Legal" -- who prefers not to innovate and is likely to follow precedents unless they clash with very strongly held preferences -- is also likely to support assertions executive power.   A majority of relevant precedents will compel deference to judicial power, and even cases in which the Supreme Court rejects particular claims of executive power generally leave significant leeway for future courts to approve different assertions.

If this argument is right, then neither Obama's priorities nor Kagan's relative sympathy towards executive power can be considered a surprise.   Rather, her nomination (for better or worse) is part of a long-standing trend.

The Difficulty of Separating Law and Politics

By Scott Lemieux

To follow up on my recent post about judicial decision-making, the upcoming Supreme Court hearings are likely to involve the candidate arguing that there is a splendid isolation between "law" and "politics" on the Supreme Court.   Political scientists (and some law professors) have marshaled considerable evidence that such a separation does not describe Supreme Court decision-making very well.   On the other hand, claims that policy preferences can explain most of what Supreme Court justices decide can also be overly simplistic.   

One case that seems to illustrate the limitations of the "attitudinal" model is Ex Parte McCardle, an 1869 case concerning the constitutionality of martial law in the South during Reconstruction.   The Court held that it did not have jurisdiction to hear a habeas corpus appeal from a newspaper editor who had been detained without charges.   The case presents an obvious challenge to the attitudinal model, because private correspondence and future decisions strongly indicate that a majority of the Court in fact believed that martial law in the post-CIvil War South was unconstitutional.    Many scholars have argued that the case provides an excellent example of the strategic model -- that is, the Court subordinated its policy preferences in order to preserve its own authority.   The Court, as the legal scholars Barry Friedman and Jeffrey Rosen put it, "bowed to Congress’s action, recognizing another fight it could not win."

As an interesting recent paper by Mark Graber argues, however, McCardle is actually an example of a case that can be explained very well by the legal model.   As Friedman and Rosen also note, the Court in 1869 was simply applying its own clear precedents.   Several cases had unambiguously established that federal courts only had jurisdiction to hear cases if they were granted this jurisdiction by Congress.   It's possible to explain McCardle, therefore, by arguing that justices will tend to subordinate their political views in cases where the law is relatively clear.

As Graber notes, however, this doesn't mean that strategy played no role in the Court's decision.   First, the Court can overrule its own precedents, and one can argue that in a more favorable political climate it might have done so.    In addition, the precedents that seemed to compel the result in McCardle quite clearly did represent strategic retreats by a Supreme Court under extreme pressure from the Jeffersonian Republicans.   The lesson is not that either "law" or "strategy" or "policy attitudes" can explain the outcome in McCardle, but that there is always a complex relationship between these factors.   As Graber puts it, "claims about whether justices were influenced by a legal strategy inevitably encompass contestable claims about good law and efficacious strategy."    

Will The Supreme Court Strike Down Parts of the Affordable Care Act? Potential Lessons From Political Science

By Scott Lemieux

The passage of health care reform has led to a considerable amount of speculation about whether the Supreme Court might strike down parts of the legislation.   The most plausible constitutional arguments surround the mandate that people who do not have insurance from another source purchase a policy through regulated exchanges.    How likely is it that the Supreme Court would strike down the centerpiece of the Obama administration's first-term agenda?

Some political scientists have developed models that attempt to explain and predict judicial decision-making.   To oversimplify, there are three major potential explanatory models.    The legal model predicts that judges are primarily motivated by a desire to reach the best outcomes as required by the law.   The attitudinal model predicts that judges are primarily motivated by policy outcomes.   The strategic model also assumes that judges are motivated by policy outcomes, but that to achieve desirable outcomes they will have to make compromises with other judges and also have to consider the possibility of retaliation from other branches.   (A completely sincere opinion that cannot attract the votes of any other justices does little to advance a justice's policy preferences, and an interpretation of a law that Congress overrules also fails to entrench the Court's preferences into law.)

What models might be applicable here, and what do they suggest about the likely outcome?

• It is very difficult for models to capture the ways in which the law affects judicial behavior.   Attitudinalists are quite persuasive that when it comes to Supreme Court votes on the merits, ideology is a good predictor of outcomes.   As the disagreement among legal scholars in the linked post above indicates, the Constitutional text does not settle the issues in this case; reasonable people can disagree about how the constitutional provisions apply.  However, this is not to say that the law is completely irrelevant.   Judges do show a certain reluctance to innovate, and  decision striking down the mandate would be at least somewhat inconsistent with recent precedent.    Since Supreme Court justices can overrule (or disgregard) their own precedents, past cases do not guarantee any future outcome, but they do make some arguments easier to make than others.   
• Although I have certain objections to the attitudinal model, as mentioned above I agree that it works quite well when applied to votes on cases that are ultimately decided by the Sureme Court. In terms of predicting the outcome of a challenge to the ACA, however, this means less than it might appear at first glance.    The model, first of all, says nothing about whether the Court will take the case in the first place.   In addition, in order to succeed a challenge to the law would almost certainly need the vote of Anthony Kennedy, whose record on federalism cases is somewhat mixed and unpredictable.    In a recent landamark federalism case, both Kennedy and his more conservative colleague Antonin Scalia joined the Court's four liberals to uphold the power of the federal government to enforce federal drug laws even if the behavior in question was legal under state law.   Chief Justice John Roberts and Samuel Alito are strong judicial conservatives, but do not yet have an extensive record on these questions.    Apart from Justice Thomas, past decisions do not strongly indicate that any justice would vote to strike down the mandate, but nor would they rule it out entirely.
• Strategic thinking by the judges may work against a decision in two respects.   First, striking down part of such important legislation may invite a political backlash on the part of Congress.   And, second, if the justices are considering policy outcomes striking down the mandate could perversely lead to a more liberal health care policy ultimately being enacted.   On the other hand, the Court does not always act strategically in the sense of avoiding political opposition, and by the time the Court heard a challenge the political context may well be more favorable to conservatives.        

On balance, political science models of judicial behavior would tend to suggest that the Supreme Court striking down the health care mandate is unlikely -- but not necessarily impossible.

The Changing Nature of Judicial Appointments

By Scott Lemieux

Given the age and health of Justices Stevens and Ginsburg, there is a very strong possibility that President Obama will nominate two more Supreme Court justices.  (Or, given the changes in the political climate, perhaps one should say that he will nominate as many justices as are necessary to fill two slots.)   This returns us to the question of what kind of justices Obama is likely to nominate.   Another way to examine the question is through the typology put forward by the political scientist Sheldon Goldman.    Goldman points out that presidents have three different major agendas when they make Supreme Court nominations:

• Policy.  Presidents usually want to advance certain substantive policy, legal, and constitutional ends.   While even justices who presidents are strongly confident share their basic orietnation may not agree with every substantive outcome a president may desire, but justices selected on ideological grounds (contrary to what you hear from some pundits) tend to be quite predictable.
• Partisan.   As with cabinet appointments, presidents use Supreme Court appointments symbolically, to signal support to important constituencies.    Part of the reason some observers assert that Supreme Court justices can be highly unpredictable is that they forget that some appointments are made primarily to advance partisan rather than policy agendas.   Eisenhower's appointment of William Brennan to appeal to Roman Catholic voters and Reagan's appointment of Sandra Day O'Connor to fulfill a campaign promise made to women are important examples of a president priveleging partisan goals over policy goals.
• Personal.   In some cases, presidents will use judicial appointments to reward friends and political allies.   Most of Truman's appointments fall into this category, as do JFK's appointment of Byron White and Lyndon Johnson's appointment of Abe Fortas.    

These agendas are not, of course, mutually exclusive.   Presidents can be fairly confident that personal allies will support them on the issues most important to their appointer, although they may (White being the classic example here) be less reliable on other issues important to a President's constiuencies.    A shrewd political pick can allow the president more leeway in terms of ideology.

Recent presidents -- and Obama seems likely to follow this trend in general -- seem to have largely abdandoned the third category.    Obama's nomination of Sonia Stotomayor was a good example of a contempoary nomination in that it attempted to advance both partisan and policy agendas at the same time: appeal to two increasingly important Democratic constituencies with a historic appointment, while also advancing important policy goals.   

In future appointments, of course, Obama may have to make tradeoffs between various goals.   Particularly in light of an increasingly recacitrant Senate, it will be interesting see if he attempts to put forward a clear liberal candidate at the risk of a fight, or if he chooses a more moderate candidate in the hope of better serving other partisan interests.  

OBAMA AND THE COURTS

By Scott Lemieux

In my last post, I discussed the possibility that the Obama administration could represent a new, "reconstructive" era in American politics.   The political scientist Keith Whittington has noted that one characteristic of Reconstructive presidencies is clashes with the judicial branch.   Jefferson initiated substantial reductions in the power of federal courts he perceived as hostile, Jackson and Lincoln essentially ignored unfavorable Supreme Court rulings, FDR floated a court-packing plan to overcome a judiciary that struck down much of his first term's legislative agenda, and Regan promised to appoint judges hostile to many of the landmark rulings of previous Courts.  

The reason these patterns recur, of course, is that reconstructive presidents generally enter office facing a judiciary dominated by members affiliated with the previous regime.   This is, in substantial measure, true of the Obama administration --  before the retirement of Justice Souter 7 of the 9 members of the Supreme Court were Republican nominees, and the federal courts as a whole tilt strongly towards conservative Republicans.   And yet -- despite Democratic control by both branches -- Obama has moved more slowly on judicial appointments than his predecessor (who also faced an opposition party determined to slow the flow of nominees onto the courts.)

There are several explanations.   One is that Obama simply will not be a reconstructive president.    Another is that he may see fights as the federal courts as better resting on the back-burner until the debate over health care legislation has been resolved.    A final -- and to me, perhaps most convincing -- explanation is simply that the stakes for judicial appointments is less than it was for some previous presidents.   As Whittington notes, the increase of judicial power (that makes the kind of outright defiance more common in the 19th century all but inconceivable today)  has its source in the deliberate empowerment of the courts by the political branches.   One result of this is that the Supreme Court, while theoretically more powerful than it's ever bin, has avoided the kind of direct challenges to central parts of a current regime's agenda that the Court last tried during FD'Rs administration.    The Court's Raich v. Gonzales decision seems to signal that what some had called the Court's "federalist revolution" would be limited only to legislation of the most marginal importance.    Courts may be a low priority for Obama because he doesn't see them as a threat to the most important parts of his legislative agenda -- and despite the current Republican majority on the Court he may well be right. 

Are We Entering A New Era?

By Scott Lemieux

In his classic book The Politics Presidents Make, the Yale political scientist Stephen Skowronek argues that the basic structure of American politics can be broken down into a remarkably small number of eras:  The Jeffersonian (1800-1828), the Jacksonian (1828-1860), the Republican (1860-1932), the New Deal (1932-1980), and the Reagan Revolution (1980-?).    Once we understand the basic politics of a period, we can see presidents facing recurring political challenges that are comparable to a number of past presidents.  Skowronek uses four categories, based on 1)the health of the dominant regime and 2)the president's relationship to that regime:

For the most recent political era, Reagan was the reconstructive president, challenging existing political and constitutional understandings with substantial success. Both Presidents Bush were "affiliated" presidents, articulating and extending the politics initiated by Reagan. (Except for the fact that he won re-election, George W. Bush is comparable to Lyndon Johnson, in that the regime reached its apotheosis under his administration, but in many respects the dominant regime's underlying political coalition collapsed.) Clinton -- who Skowronek, remarkably, predicted could face a serious impeachment treat just after his re-election -- was a "pre-emptive" president, attempting to keep a minority political coalition together while collaborating in important respects with the dominant regime.)

Which brings us to an interesting question -- does the Obama administration represent a new political era?    In a sense, the success (or lack thereof) of his proposed health care reform represents the first major test.   If major legislation reflecting a different understanding of the role of government passes, combined with such factors as some clashes with federal courts still largely under the control of the Reagan regime and electoral validation in 2012, we may in retrospect see the 2008 election as pivotal.  Conversely, if Obama cannot secure re-election and his legislative accomplishments are more limited or less durable than might be expected, the Obama administration could be seen as a failed pre-emptive president in an overwhelmingly Republican era.     Which do you see as more likely?    

Madison and Health Care

By Scott Lemieux

One of our fellow political scientists over at The Monkey Cage discusses Thomas Friedman's diagnosis of why the American political system seems unable to address major problems (most notably global warming.)  He identifies five potential reasons:

1. “the wild excess of money in politics”
2. Gerrymandering of congressional districts
3. the 24 news cycle
4. a permanent presidential campaign
5. the emergence of a blogosphere that “at its best enriches our debates, adding new checks on the establishment, and at its worst coarsens our debates to a whole new level, giving a new power to anonymous slanderers to send lies around the world” (I’m going to assume he’s talking about The Monkey Cage in the former part of that quote).

Tucker has a good account of some of the work political scientists have done on these questions.   I, however, was struck by the omission of what strikes me as the most obvious explanatory variable: the structure of American political institutions.   For better or worse, the system was designed so that major legislation was going to be the exception rather than the rule, and this is exactly how it's worked in practice.     

Relatedly, Friedman refers to the saying that the American system was "designed by geniuses so it could be run by idiots."   This is essentially a restatement of Madison's famous argument in Federalist #51 that "[i]f angels were to govern men, neither external nor internal controls on government would be necessary."   As the first version suggests, Madison's statement is sometimes interpreted to mean that he didn't see political leadership as being especially important, but this is a misreading.    More accurately, Madison wanted to structure the government that couldn't do too much damage if bad leaders where at the helm, and his structure was an ingenious means to that end.   But it's the other implication of these structures that creates the dilemma that concerns Friedman: structures that make it hard for bad people to enact policies also make it hard for all political leaders to enact major reform policies, even if there's something like a consensus that the status quo is unacceptable.

Whether this is a good or a bad thing, of course, depends on your political values.   But it's not surprising that the American government has been slower to respond to problems like global warming than other comparable democracies.  

PAST PERFORMANCE DOES NOT GUARANTEE FUTURE RESULTS

By Scott Lemieux

I scoffed when some friends and colleagues speculated after Sarah Palin's well-received convention speech could have a major effect on the campaign in her running mate's favor.   I also scoffed when some people I talked to claimed that Palin's much less well-received television interviews would be devastating to her ticket.   The reason was simple.   To oversimplify only slightly, political science research suggests that vice presidential choices have little effect on election outcomes.   Indeed, despite what the priorities of media coverage might imply, campaigns as a whole have only a marginal effect on election outcomes (which can be explained with considerable accuracy by a few external factors, most notably whether the candidate in an incumbent and the condition of the economy.)  History suggests the vice presidential choices might increase the chances that a candidate will win a running mate's home state, and otherwise matter very little.   And since Palin came from 1)a small state that 2)was already solidly Republican, McCain's choice figured to have a negligible effect.

John Sides at the Monkey Cage, however, points us to a fascinating analysis of the 2008 campaign suggesting that I may have been wrong to dismiss the potential impact of a Palin pick so quickly.   Political scientist Richard Johnston (author of the seminal study in voting behavior Letting the People Decide) and Emily Thorson (blogger as well as political scientist), have found data suggesting that the Palin choose may well have had a substantial impact on the 2008 election.  Tracing McCain's approval ratings, the argue that it was Palin, not the economy, that explain's McCain's losing margin:

The failure of the economy to move the campaign is a puzzle in its own right. Election after election shows that perceptions of the economy are a crucial force shaping vote preference. Why then did events as terrifying as the meltdown not translate into electoral decisions? And if the meltdown did not drive the dynamics of the campaign, what did?

We think the answer to this question starts with Sarah Palin, and we base this judgment on the level of detail made possible by the NAES. John McCain’s August 29 announcement of Palin as his running mate surprised the Republican establishment, the media, and especially voters. She made a strong first impression: she enjoyed high approval ratings after her acceptance speech, and the percentage of voters saying that they intended to vote Republican skyrocketed. But within days of the speech, her ratings began a precipitous slide from which she—and the McCain campaign—never recovered. Throughout the rest of the campaign, vote intentions were closely tied to Palin’s approval ratings: each major Palin approval drop was followed, within a day or two, by a drop in McCain vote intention. No other factor moved McCain support with such precision. Comparison of the correlation between running mate approval ratings and vote intentions from 2000 and 2004 confirms Palin’s peculiar importance in 2008.

Of course, as Johnston and Thorson acknowledge, the data is merely suggestive; it cannot prove that Palin had an unprecedented effect on the 2008 elections.   But, at the very least, it means that we cannot easily dismiss claims that vice presidential selections may be more consequential than past elections have suggested.   What this also means is that political scientists, when studying elections, always have to be modest in their conclusions, for an obvious reason: the relative rarity of presidential elections means that we have to draw conclusions based on relatively small samples, often encompassing very different historical eras.  Particularly given that there are many ambiguities in analyzing individual elections as well, it's important not to be too confident that past historical patterns will recur.    After all, even if the previous consensus of the research was correct, history can change.   Even if vice presidential choices had little impact in most past elections, they may matter more in the future for reasons we can't fully identify yet.

What Kind of Justice Will Sotomayor Be?

By Scott Lemieux 

The confirmation hearings for Barack Obama's first Supreme Court nominee, Sonia Sotomayor, begin today. The hearings are unlikely, however, to produce a great deal of useful information.    Since the defeat of Robert Bork -- who had been all too candid about his views on specific constitutional issues, particularly Roe v. Wade, which he would have been the fifth vote to overrule in 1992 had he been confirmed -- successful nominees have mastered the art of sounding smart while saying nothing.     As a result, in his very useful  recent book about the confirmation process, Christopher Eisgruber persuasively argues that the "Senate should evaluate nominees on the basis of their record and reputation, just as presidents do." 

But how to evaluate this record?   One method used by political scientists is Segal-Cover scores, which use newspaper editorials to predict the ideological direction of a future justice's votes.    Despite the relative simplicity of the method, it's quite effective at predicting future judicial votes.   According to her Segal-Cover scores, we should expect Sotomayor to be liberal by the standards of the current Republican-dominated Court, but a moderate liberal by historical standards:

  

Jeffrey Segal, who helped develop the system for grading nominees' perceived ideological leanings, told NationalJournal.com in early June that Sotomayor would likely have a similar score to Ginsburg -- around 0.68 on the 0-1 scale, with 0 being most conservative. If that's the case, Sotomayor would rank as one of the more liberal judges to be nominated since 1937, but she would hardly approach figures such as William Brennan or Thurgood Marshall, both of whom rate at 1 on the scale. Ginsburg currently ranks as the court's 17th most liberal nominee going back to the FDR administration. The 10 most conservative nominees during that period include four current justices: Antonin Scalia (he tops the list with a score of 0), Samuel Alito (0.10), Chief Justice John Roberts (0.12) and Clarence Thomas (0.16). Former Chief Justice William Rehnquist comes in third, with a score of 0.05, and President Reagan's failed nominee Robert Bork is up there as well, with a score of 0.10.

To reiterate what I said in my last post, I don't mean to suggest that Segal-Cover scores can, in themselves, provide all the necessary information. Dichotomous characterizations of Supreme Curt decisions leave out many possible nuances in individual cases, and how a justice is perceived before his or her hearings is a good but far from perfect indicator. Still, these scores have been useful in the past, and are likely to provide more useful information about Sotomayor than the hearings == at least if she's been well-coached.