Month: August 2014

Context Clues and Attitudinal Outliers

There are a number of modern Supreme Court cases that scholars have pointed to as putatively confounding. They do not line up with the notion of a political court deciding cases along predictable ideological lines. How can these outliers be explained?  One path usually not taken is to look at the contextual details surrounding the cases that provide clues as to why the justices are bucking the attitudinal trends.

A prominent example is Texas v. Johnson, where an ideologically-mixed majority overturned a flag-burner’s criminal conviction on First Amendment grounds.  For example, scholars note, Justice Scalia voted to overturn a criminal conviction, and Justice Stevens voted anomalously to uphold the conviction in the face of a First Amendment challenge.

These votes are certainly a departure from the overly simplistic attitudinal model.  (The attitudinal model already has four established exceptions to it in the literature — law and policy (Bailey and Maltzmann 2011), strategic considerations (Epstein and Knight 1998), identity, and, most recently, personal relationships and experience (Glynn and Sen 2014) — and Matthew Hall is working on a paper that will add yet another exception to it).

But what rarely gets mentioned when discussing Johnson is that Justice Stevens served in World War II as a young man, and this service almost certainly left an indelible impact on him about the meaning of the flag. Scalia did not write an opinion in Johnson, but he continually touts it as an example of his apolitical voting (the statistical evidence much to the contrary).

Yet, if Scalia really “hated,” as he alleges, the result so much in Johnson, then one must question why he voted against, for example, the First Amendment rights of a high school student who was suspended for holding up a sign that read “Bong Hits 4 Jesus” (Morse v. Frederick), a seemingly much more innocuous message than Johnson’s.  This latter vote is in line with what we would expect from a conservative justice like Scalia.  Without devolving into pure speculation, it seems plausible that Scalia viewed Johnson as an ideologically “cheap” vote which he could use as a putative example of his non-ideological voting.

(It is interesting to note Congress’s “response” to Johnson.  “Response” is in scare quotes because the federal legislation — it passed 371 to 43 in the House and 91-9 in the Senate — was symbolic, costless legislation to the members who could show their patriotic bona fides to constituents who might be upset by an “activist” Supreme Court ruling).

Another prominent example is Dickerson v. United States which presented the Court with an opportunity to overturn Miranda v. Arizona.  However, the conservative Court did not do so, and Chief Justice Rehnquist wrote the opinion upholding Miranda.  This case is not so much of a surprise, however, if one looks at it context.  As I have noted:

For example, Dickerson v. United States — a 2000 challenge to a Nixon-era federal law that statutorily overturned the Miranda decision, but one which federal prosecutors never utilized — was not simply the Rehnquist Court upholding a Warren Court criminal procedure decision.

It was, instead, as Justice Rehnquist realized, the cultural purchase and importance of Miranda, a decision whose contents had become known to most everyone through television police procedurals and the like, that saved it.  A decision striking down Miranda would have had high salience with the larger public who generally pays little attention to the Court.  What is more, the Court had already hollowed out Miranda to the point that it was a shell of its Warren Court self.  Put simply, there was no need to explicitly and publicly do what the Court had accomplished through other, lower-salience means.

It was also a chance for Rehnquist to assert the Court’s constitutional supremacy, at least rhetorically, over Congress.  Rehnquist wrote that “[w]e hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”  It was not surprising, however, that Justices Scalia and Thomas, in dissent, advocated expressly overruling Miranda (which may have been the more intellectually honest result).

Yet another seeming anomaly is the sentencing guidelines line of case — e.g., ApprediBooker — where the liberal Justice Breyer votes in favor of the guidelines against what we would expect: a pro-criminal defendant vote.  Here again, what is rarely mentioned is that Justice Breyer helped write and shepherd the sentencing guidelines through Congress.  Although he has been critical of the mandatory minimums aspect of the guidelines, the most reasonable explanation is that Breyer has an obvious vested interest in saving his creation.

Similarly, Scalia’s confrontation clause revival — again, cited as an area where Scalia “surprises” by voting for the rights of criminal defendants — is perhaps best seen as an area of law that does not produce very costly political results for the conservative justice — the federal criminal trial is dead to all but those who are well-off, and even state trials are rare — and allows Scalia to trumpet originalism, a move he does not make when the political costs are much higher, as in affirmative action cases. (N.b., as the late William Stuntz noted, Scalia’s confrontation clause jurisprudence is the epitome of the triumph of form over good policy substance).

All of the above could be dismissed as mere anecdotes.  “After all,” as Bailey and Maltzmann write, “we can just as easily produce stories of justices voting against legal doctrines in favor of their presumed policy preferences.”  But this doesn’t seem quite right — the reasons the anomalies are of interest is because, after all, they are anomalies they do not follow the received wisdom.  What I intended to accomplish in this short post was show there are usually rather plausible reasons other than legal, strategic or political reasons why justices vote the way they do.  Lawrence Baum and Neal Devins have persuasively shown the influence of sociological factors on the Court.  By understanding the justices in their full context, the cases that might surprise us can make more sense.

Thinking about Rethinking Regime Politics

Eric Posner, son of renowned jurist Richard Posner and a formidable legal scholar in his own right, reviewed Kevin McMahon’s then-new book (Nixon’s Court: His Challenge to Judicial Liberalism and its Political Consequences), for The New Republic in 2011, and cheekily noted:

Political scientists take a more Olympian view. For them, justices are wind-up toys set in motion by the president who selects them: they totter down a path determined by the president’s political agenda. If you do not like Justice Scalia’s opinions, then you should blame President Reagan, who appointed him, not Justice Scalia.

This is a somewhat simplistic view of the regime politics literature, but it hints at something deeper.

The pith of the regime politics literature is this: “[r]ather than a check on majority power, the federal courts often function as arenas for extending, legitimizing, harmonizing or protecting the policy agenda of political elites or groups within the dominant governing coalition” (Clayton & Pickerill 2005).  However, in 2007, Tom Keck issued a warning.  In his article Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools, Keck took note of a perhaps reductionist tendency in the regime politics literature (particularly by legal academics), the same reductionism that Professor Posner hints at.

Following up on this, in 2012, Matthew Hall laid down a gauntlet. In an article titled Rethinking Regime Politics (gated version here), Hall, utilizing the universe of cases where the Court had struck down federal legislation, found little support for one of the central claims of regime politics scholarship (a conservative Court supporting the New Right regime).  Hall noted that his study was only one slice of the pie; he did not examine cases where the Supreme Court upheld federal legislation or struck down state laws, among other possible avenues.  But, no doubt, Hall’s article is a challenge to regime politics scholars, a body of scholarship I find rich and persuasive.

Before I wave the white flag, however, I would mildly quarrel with Hall in some of the examples he uses to critique the regime politics literature as cases contrary to the expectation of “a conservative Court serving the conservative regime.”  For example, Dickerson v. United States — a 2000 challenge to a Nixon-era federal law that statutorily overturned the Miranda decision, but one which federal prosecutors never utilized — was not simply the Rehnquist Court upholding a Warren Court criminal procedure decision.

It was, instead, as Justice Rehnquist realized, the cultural purchase and importance of Miranda, a decision whose contents had become known to most everyone through television police procedurals and the like, that saved it.  A decision striking down Miranda would have had high salience with the larger public who generally pay little attention to the Court.  What is more, the Court had already hollowed out Miranda to the point that it was a shell of its Warren Court self.  Put simply, there was no need to explicitly and publicly do what the Court had accomplished through other, lower-salience means.

In any event, the “contingencies of history” aspect of APD certainly has not escaped regime politics scholars. Jack Balkin, for example, pointed this out in a fascinating post when Robert Bork passed away: the what if(?) Bork had been nominated before Scalia and the concomitant consequences for constitutional doctrine.  As Balkin notes, Roe v. Wade almost certainly would have been overturned (whether Casey would have been the legal vehicle is of course impossible to know).  And if that version of the Rehnquist Court had overturned Roe, would the regime politics literature then say that overturning Roe was consistent with the New Right regime’s continual criticism of Roe as standing for everything that was/is wrong with constitutional law?  The question lingers.

What is more, the counterfactual game can be stretched back further and more problematically.  In performing research for the paper I have forthcoming in Constitutional Commentary, it served as a useful reminder how contingent many Supreme Court appointments were.  President Bush’s first choice to replace Justice Brennan was not David Souter, but the (very) conservative Fifth Circuit Judge Edith Jones.  Nixon did not even know how to correctly pronounce William Rehnquist’s name (“Renchburg” and “Renchquist” he was caught saying on tape), and, as Kevin McMahon detailed in the above-referenced book, Senator Howard Baker (R-TN), almost took Rehnquist’s seat on the Court.  Keith Poole and Nolan McCarty point out that Baker was a model moderate conservative (the “Great Conciliator”).  In other words, he certainly would not have been the arch-conservative Justice Rehnquist turned out to be.  Indeed, Baker died this year, thus outliving Rehnquist by almost a decade.  One can imagine (but only imagine) that he would have been a conservative bete-noir.

And there are more counterfactuals.  What if Lyndon Johnson had not dropped the ball with Fortas’s nomination to replace Chief Justice Warren?  The conventional story of how the Burger Court rolled back some of the Warren Court’s jurisprudence (especially racialized issues) would have not happened — indeed, there would have been no Burger Court at all, but the Fortas Court. Had Richard Nixon not been forced to resign, would Justice Stevens, nominated by Ford, even been on the appointments radar, and would his seat have gone to a more conservative justice?  What if Jimmy Carter been able to appoint at least one justice?

On the other side of the coin, it is sometimes difficult to discern the reasons for the attitudinal model’s continued reign.  Lee Epstein, Richard Posner and William Landes powerfully critique the theory in their latest book.  Continued adherence to viewing judicial politics solely through the attitudinal model is today the equivalent of why the model was created in the first place: to give lie to the notion that the justices were simply “doing law” (i.e., legal formalism) on the Court. The script, as it were, has flipped.

But it might be said that the attitudinal model was a victim of its own success. It is now so widely accepted that political preferences play a role on the Court (though not to the extent the Segal and Spaeth had it), that the attitudinal model per se, or, by itself, is not much more than an analytical jumping-off point or a (partial) given.

So where does this leave this us?  While Hall’s challenge to the regime politics literature is stout, I suspect that the regime politics literature would be vindicated if one empirically examined what happens when the Court strikes down (outlier?) state laws.  But mere instinct is not enough.  This is fertile territory for a marriage of APD and quantitative work.