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 II: THE STATE OF THE UNION CALL-OUT

By Scott Lemieux

I recently wrote about the possibility that Obama, facing a Supreme Court with a majority appointed by the previous Republican regime, might ultimately be embroiled in public conflict with the Court. I did not necessarily it expect to happen this quickly, but at last week's State of the Union Address President Obama expressed disagreement with the Court's recent Citizens United decision:

There is some disagreement about how unusual Obama's actions were. Certainly, there's nothing unusual about a President criticizing a Supreme Court opinion, and nor is it unprecedented for the President to engage in criticism of the Supreme Court during a State of the Union address. Other commentators have argued that the context of modern media -- having the Supreme Court in attendance on a live national television broadcast -- makes Obama's criticism of the Court new (and potentially disturbing.) The appropriateness of Obama's actions is, of course, a question of judgment. What will be more interesting to students of American government is whether or not conflicts with the Court will be a recurring pattern. It will also be interesting to see if Congress takes up Obama's suggestion to pass new campaign finance regulations to at least partially replace the legislation the Court struck down. But it's not surprising that some friction has emerged.

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. 

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.

How Unpredictable Are Judicial Appointments?

By Scott Lemieux

During the confirmation hearings for Sonia Sotomayor, President Obama's first Supreme Court nominee, you're almost certain to multiple pundits say that judicial appointments are unpredictable and often surprise the presidents who nominate them.    But is this true, especially in the modern era?   Consider this data from Lee Epstein and Jeffrey Segal's Advice and Consent, a very useful political science analysis of the judicial confirmation process:

I grant that no characterization of judicial or presidential ideology is beyond dispute -- certainly, if I were evaluating the expected ideology of presidents subjectively I would characterize Johnson as substantially more liberal than Kennedy or Clinton (which would actually make the fit between presidential and judicial ideology tighter.)   Similarly, with judges there may be room for dispute in close cases: whether one considers, say, White or Breyer more conservative requires judgments in coding opinions and weighting different aspects of judicial ideology that reasonable scholars could make the other way.  

Still, I think this is persuasive evidence that judicial appointments are in fact quite predictable, and countervailing anecdotal examples will tend to be exceptions that prove the rule.     It's true, for example, that Eisenhower picked two liberal icons (Brennan and Warren) and two relatively moderate conservatives (the second Justice Harlan and Potter "I know it when I see it" Stewart.)   But this is easily explained by the fact that Eisenhower was 1)a very moderate Republican 2)who didn't particularly care about the ideology of his judicial appointments.   There was certainly no reason to believe that Warren and especially Brennan would be conservative justices; they can't be considered "unpredictable."    I think the same can be said for President Reagan's pick of O'Connor or Bush's pick of Souter -- nether had records that would expect them to have been conservative justices in the mold of Thomas or Rehnquist.     And in a couple cases Republicans presidents made moderate picks not because they thought these picks were staunch conservatives but because the Senate rejected more conservative choices (Harry Blackmun wrote Anthony Kennedy a note early in his tenure welcoming him to the "#3 club" as they both were the third choice of their nominating president.)

I don't mean to overstate the precision of the conclusions that can be drawn from this data.   Especially since Sotomayor has spent most of her career as a federal appellate judge rather than in the executive branch or academia, there is some uncertainty about what kind of judge she will be.   She might be, if not a Douglas or Mashall, surprsingly liberal, perhaps to the left of Ginsburg.   Or she could be quite moderate, if perhaps not as centrist as Breyer.    But it would be an unprecedented upset if she were anything but a consistent member of the current Court's liberal wing.

Should They Look Like Me?

By Laura McKenna

In 2001, at the University of California at Berkeley, Sonia Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

Sotomayor has been nominated for the Supreme Court by President Obama. She is under much scrutiny as the public tries to guess how she will rule on hot button issues, such as Affirmative Action, abortion, immigration, and church-state issues. That 2001 statement has been the focus of much controversy in the past couple of weeks.

In that speech, Sotomayor seems to say that her background enabled her to have a unique understanding of the nuances in cases that involved minorities and women. A judge with a different background would not be as sensitive. 

Rush Limbaugh has been quick to call her a racist for those remarks, but her comments can not be brushed off so easily. It taps into an old debate in America. Does race and gender influence decision-making?

In political science, we use the terms, descriptive representation and substantive representation.

Descriptive representation is the belief that political representatives should reflect the ethnic and gender composition of their constituency. A representative from the Harlem district should be black, while the representative from Utah should be white and Mormon. In addition, the entire body should be 50% female.

Substantive representation is the belief that representatives should reflect the political preferences of their constituencies, and their skin color and gender are irrelevant. An old white guy can effectively advocate for the needs of a poor, minority population.

In one study, Carol M. Swain explored this issue by looking at Congressional voting decisions. She found that liberal white members of Congress represented black interests as strongly as did black representatives. Liberal white Congressmen had nearly the same voting records as their black counterparts.

However, these findings may not necessarily be applied to Supreme Court justices. Decision making may be more simple for members of Congress than Supreme Court judges. They are able to mirror decision making of their colleagues, and they have case work and the need for reelection to keep them very attuned to their constituency's needs. A Supreme Court has few colleagues and no regular contact with the public. In that case, perhaps the need for descriptive representation is more critical.

This matter is far from settled. It will be interesting to see if this matter is discussed during the confirmation hearings over the summer.