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.

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