A paradox haunts books by contemporary Supreme Court justices. Publishers give the justices huge sums—$2 million, in the case of Justice Amy Coney Barrett—to write monographs insisting that Supreme Court judging is apolitical. Publishers provide these guarantees because Supreme Court judging in the United States is hyperpolitical: Partisans can be trusted to buy and praise the books written by justices on their side of the political fence. 

This paradox has a predictable literary consequence: The books are almost always bad. Recent books by Justice Neil Gorsuch and former Justice Stephen Breyer were widely and rightly panned by reviewers, though purchased in large numbers by partisan readers. Neither book explained why publishers, bookstores, producers, and influencers roll out red carpets for people whose primary job is supposedly to follow, to the letter, instructions given in past centuries.

Justice Barrett’s new book, Listening to the Law, meets the low bar set by her colleagues. She promises an accessible (not scholarly) insider’s guide to Supreme Court practice. The justices, Barrett tells us, like one another, attend parties together, and manage to disagree without rancor. Judging, she insists, is a matter of humility, of listening carefully to the law made by others. Apart from an informative discussion of textualism, the method with which Barrett is most associated, the book offers no account of why serious scholars—including, one suspects, Professor Barrett—think actual judicial practice is far more complicated than simply discovering (or “listening to”) the law made by others. The effect is less analysis than campaign biography, a self-presentation in the style of politicians explaining why they can be trusted with power.

The resemblance to political memoir is not accidental. Barrett, like her colleagues, aims to humanize herself. She assures readers that her pre-Court “life was good, but like anyone’s, it was not perfect”; that “these last years of being in the public eye have toughened me up”; that “all human relationships depend on kindness and humility.” Such bromides could have been lifted from a stump speech. Justices, like candidates, must persuade their audiences that they are relatable, trustworthy, and possessed of the moral fiber to do their jobs. The difference is that candidates eventually face voters. Justices, armed with life tenure, face only history.

Indeed, one of Barrett’s most insistent themes is precisely that life tenure guarantees independence. “The Constitution’s guarantees of life tenure and salary protection for federal judges,” she writes, “are designed to fortify a judge’s resolve to stand firm against the tide of public opinion.” The only evidence she provides for this claim is Alexander Hamilton’s assertion, made more than 200 years ago in Federalist no. 78, that “nothing will contribute so much as [life tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” Throughout, Listening to the Law celebrates the “genius” of the Framers. What was good enough for 18th-century minds ought to be good enough for 21st-century citizens.

An accessible guide to constitutional practice might note that very few constitutional democracies grant judges life tenure, and those that do (Canada and the United Kingdom) still require retirement no later than 75. Those judiciaries seem at least as independent as federal courts in the United States. A Brennan Center for Justice study by Lisa Hilbink of the University of Minnesota found that other democracies achieve judicial independence through shorter terms, mandatory retirement, or both, with no decline in performance. Indeed, the supreme court of Israel, which imposes mandatory retirement no later than 70, has far more aggressively challenged Prime Minister Benjamin Netanyahu’s policies than the U.S. Supreme Court has challenged Donald Trump’s policies. Similarly, the lack of life tenure has not inhibited the supreme courts of India and Germany from declaring constitutional amendments unconstitutional. 

Equally central to Barrett’s civics is the notion that judicial review exists to protect minorities from majority tyranny. Aware of our fallibility, the wise Framers of the Constitution created an institution that would ultimately declare segregated schools unconstitutional, protect free speech from local censors, and prevent police officers from physically abusing persons suspected of crime. The trouble, which Barrett conveniently neglects, is that the most difficult and consequential cases pit one minority against another. Consider Fulton v. Philadelphia (2021), which concerned whether the city could exclude a Catholic foster care agency that refused to work with same-sex couples. Both parties plausibly claimed to be protecting vulnerable minorities. Philadelphia argued that it was protecting LGBTQ families from discrimination; the Catholic agency argued that it was being discriminated against for its religious beliefs. 

History also undermines the slogan. Before Brown v. Board of Education (1954), it is difficult to identify a Supreme Court decision striking down a federal law most Americans would now say protected deserving minorities. More often it went the other way: Dred Scott (1856) denied Congress the power to ban slavery in the territories; the Civil Rights Cases (1883) voided Reconstruction-era protections; Pollock (1895) struck down the federal income tax; Carter Coal (1936) invalidated New Deal reforms. Slaveholders, too, claimed the mantle of an oppressed minority. As today, one person’s “worthy minority” was another’s entrenched interest, and few historians would tally the Court’s record as consistently protective of the vulnerable.

The deeper problem is not just that the Court often failed in practice, but that it has never had a clear method for identifying which minorities deserve protection. That choice is inherently political, so Barrett just ignores it. Listening to the Law never even hints at the difficulty of identifying the minorities that merit judicial protection, or whether the history of judicial review evinces any tendency for courts to make the right choices in this regard. Once one looks at the actual record of judicial review, what emerges is less a steady defense of the downtrodden minorities than a scattershot series of interventions, many of them on behalf of entrenched elites. 

As Mark Tushnet has noted, judicial review amounts to “noise around zero,” producing essentially random deviations—sometimes good, often bad—from what the political system would otherwise generate. When a pattern can be discerned, it is a tendency to side with the executive over Congress and with legal elites when they differ from the less educated or less wealthy. Professor Barrett is almost certainly aware of this scholarship, but Justice Barrett leaves readers with the comforting civics textbook version, assuring them that courts stand reliably with the powerless when in fact the historical record points to something closer to the opposite.

Listening to the Law likewise assures readers that justices decide cases on law, not politics. A few anecdotes about particular justices, Barrett’s willingness to sustain death sentences despite her moral opposition to capital punishment, and statistics demonstrating that approximately half the decisions the justices make are unanimous constitute the entire evidence for this assertion. No scholar paints with so broad a brush. A high percentage of the Supreme Court’s unanimous decisions concern matters such as the proper interpretation of the Employment Retirement Income Security Act (ERISA), a matter on which most people who are not retired have weak if any policy preferences. 

As politically conscious citizens observe, when the justices decide major cases on which the political parties divide, the justices appointed by Republican presidents almost always take positions favored by the Republican Party and the justices appointed by Democratic presidents almost always take positions favored by the Democratic Party. Consider abortion, campaign finance, and the recent Supreme Court practice of using the emergency, or shadow, docket to block lower federal court rulings temporarily enjoining Trump administration executive orders. A citizen who bet at even odds that the justices would vote consistently with the president that appointed them would gain a fortune. When exceptions exist, the tendency is for the justice to side with more moderate members of the party against more extreme members. That some Roberts Court justices may side with the Wall Street Journal editorial page over Donald Trump when the justices rule on tariffs hardly demonstrates a court above politics.

The free exercise clause offers perhaps the starkest example of politics shaping judicial decision making. During the second half of the 20th century, conservative originalists were committed to the proposition that the free exercise clause as originally understood provided religious believers with no exemptions from generally applicable laws. This point was emphasized in the Reagan administration’s Guidelines on Constitutional Litigation in 1988, a core statement of conservation constitutional principles at the time. Justice Antonin Scalia made it explicit in Employment Division v. Smith (1990), holding that worshippers had no right to use peyote in religious ceremonies when Oregon law banned the drug entirely. 

By the early 21st century, however, evangelical Protestants—core members of the Republican coalition—became the typical free exercise claimants. A miracle promptly occurred. Republican-appointed justices discovered that the 1791 clause had always guaranteed exemptions, or that laws burdening evangelicals were exceptions to the no-exemptions principles. Who knew? Religious organizations may now engage in what would otherwise be considered employment discrimination by designating employees or teachers as ministers, as decided in Our Lady of Guadalupe School v. Morrissey-Berru (2020). 

The near-perfect correlation between partisan affiliation and votes goes unacknowledged in Listening to the Law. The message is simple: Trust us.

This, finally, is the problem with the genre itself. By presenting judging as a realm of pure law, insulated from politics, the justices offer a picture so implausible that it makes the opposite claim—that judging is nothing but politics—more credible. In their effort to inspire confidence, they deepen cynicism. If the only choices are civics class pieties or unvarnished partisanship, many readers will conclude, not unreasonably, that the latter is closer to the truth. Publishers, of course, will not mind. Judicial celebrity sells, and the market for reassurance is deep. Barrett closes with optimism that the constitutional project will endure, with no hint of constitutional crisis or recognition that many Americans believe one already exists. That is for serious studies of law and politics. Barrett’s purpose, like that of her colleagues’ books, is to persuade readers that all will be well so long as the justices remain in charge.

The post Justice Barrett’s Campaign Biography appeared first on Washington Monthly.

Nearly 200 years ago, several intrepid lawyers began a quixotic campaign to have courts declare the Fugitive Slave Acts of 1791 and 1850 unconstitutional. The attorneys were not successful as a matter of constitutional law. Salmon Chase, the abolitionist who later became Abraham Lincoln’s Treasury Secretary and Chief Justice of the United States, and his associates gained some victories in state judiciaries but never in federal courts. 

When the losses piled up, contemporaries of Chase surely declared, I told you so. Federal justices in antebellum America were not going to join an antislavery crusade. Had he been around then, Harvard Law Professor Lawrence Lessig might have regarded Chase’s effort as the same “disaster” as he presently claims of the litigation campaign to disqualify Donald Trump. Time travel permitting, Yale Law Professor Samuel Moyn might have asked, as he asked of the litigation campaign to disqualify Donald Trump, “whether the entire project of pursuing our best political future through the constitutional politics of asking high court judges to take our side—as opposed to democratic political struggle to achieve our goals—is either credible or practical.” 

The abolitionist project of the 18th century teaches 21st-century lessons about the litigation efforts to disqualify Donald Trump, but they are not the lessons offered by Lessig and Moyn, who chided court-centered efforts to keep Trump off the ballot. Litigation may be successful in the court of public opinion, even when lawyers fail in court. Writing a requiem for any litigation campaign, as Lessig and Moyn did, immediately after the Supreme Court’s decision earlier this winter ordering Trump to remain on the Colorado ballot was premature.

Abolitionists regarded their litigation campaign as political as well as legal. Some abolitionists litigated. Some organized antislavery political parties. Chase did both. The Ohio politician and his allies were fully expected to lose in federal courts; however, optimistic prominent antislavery advocates waxed in public. Their goal was to contribute to the democratic political struggle to restrict and abolish slavery. Theirs was not an effort to replace constitutional politics with constitutional law. Litigation kept slavery in the public consciousness and forced Northerners to confront the plight of the enslaved on a regular basis. Federal judicial decisions exposed the hypocrisy behind Southern state rights claims. While slaveholders and their northern allies saluted the principle that each state determined the status of persons in its jurisdiction, that rule did not apply when slavecatchers demanded that free states return alleged fugitives without a hearing. Antislavery advocates in politics would reap the benefits of antislavery litigants. When slavery was finally abolished, Chase was the sixth Chief Justice of the United States.

More than 150 years after Congress repealed the Fugitive Slave Acts and sent the Thirteenth Amendment to the states, Lessig emulated American abolitionists by challenging a state law that compelled presidential electors to vote for the candidate they had pledged to support. Unfortunately, he was not successful, and no Supreme Court justices adopted his position.

Nevertheless, Lessig’s litigation campaign was neither a disaster nor politically naïve for being blocked by the courts. Opponents of the Electoral College did not abandon other avenues for repeal while waiting for an authoritative judicial decision. The litigation brought public attention to the Electoral College’s weaknesses and exposed judicial hypocrisy on originalism. The campaign against the Electoral College is stronger today than in 2020 and certainly no weaker, partly because of Lessig’s admirable litigation effort.

University of Washington Political Scientist Michael McCann’s Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization details why, contrary to football coach Vince Lombardi’s famous adage, winning in court is not everything (or the only thing) in litigation. Advocates often overestimate their chances of winning, but litigation frequently transcends unfavorable judicial decisions. Litigation raises consciousness, keeps issues before the public, and creates allies, even if those allies do not wear robes. Litigation forces some hostile officials to take positions that may have adverse political consequences for them in the future.

The history of the legal campaigns to declare fugitive slave laws unconstitutional, enable presidential electors to vote their conscience and provide women with the same pay as men who perform analogous jobs suggests that the requirements for the legal campaign to disqualify Donald Trump may be premature. That litigation campaign garnered one less vote on the Supreme Court than the litigation campaign against the fugitive slave acts in the twenty-five years before the Civil War—and the same number of votes as the campaign for conscientious presidential electors. Some participants made overoptimistic claims in public and may have even believed them privately. (I stand by my comment that the campaign had a “puncher’s chance.”) Nevertheless, in other dimensions, the litigation campaign may have been a successful endeavor in constitutional politics even though constitutional law failed.

The lawyers who asked courts to disqualify Trump kept the issue of Trump’s role in the January 6, 2021, insurrection in the public eye during a crucial period in the presidential campaign. An argument that began as speculation by several law professors convinced numerous citizens, prominent and otherwise, that Trump was not constitutionally qualified to be president. Three members of the Supreme Court declared Trump to be an “oathbreaking insurrectionist,” a phrase that will no doubt be frequently repeated on the campaign trail. Many persons who fought disqualification largely conceded Trump was an oathbreaking insurrectionist while pointing to constitutional technicalities that justified in their minds overturning the decision of the Colorado Supreme Court. Their arguments against disqualification made for successful constitutional law—but wielded properly by Trump’s opponents—may come back to haunt the former president.

The legal campaign to prevent Trump from regaining the presidency has not diminished the political campaign to prevent Donald Trump from regaining the presidency. The lawsuits were brought by two public interest groups that hardly anyone had heard of before the litigation. Five to seven law professors spent more time than they otherwise might have writing essays and short blog posts defending disqualification. The rest of the anti-Trump world continued fighting. While we waited for the Court’s decision, no one stopped raising money for political campaigns against Trump, organizing coalitions to fight Trump, or persuading their neighbors to mobilize against him. Disqualification was merely one front in the struggle to preserve constitutional democracy from MAGA barbarians.

In deciding for Trump, the Supreme Court acquired no additional political capital that might be employed against progressive rights and institutions. Instead, the opinion in Trump v. Anderson discredits conservative claims that the Court is making decisions on the neutral basis of text and history. The text of Section Three does not support the judicial distinction between state efforts to disqualify candidates for state office and candidates for federal office. No Section Three author made such a claim during the debates over the Fourteenth Amendment. Chief Justice John Roberts & Company love state regulation of federal elections except when they do not. There is no evidence that undecided voters are moving to Trump due to the disqualification litigation or that Trump’s claimed vindication has moved anyone outside the MAGA base. Rather, as the campaign continued, an increasing number of persons concluded that Donald Trump is not qualified to hold the presidency. Several polls, here and here, indicated a greater percentage of the public favored disqualification than voted for Donald Trump.

The legacy of the litigation campaign to disqualify Trump is yet to be determined. Lessig, Moyn, and others may correctly point to differences between the litigation campaign to disqualify Trump and other litigation campaigns that had a beneficent impact on constitutional politics. 

The crucial point is that the success of the litigation campaign for disqualification depends on the future and not on the recent Supreme Court’s decision. Perhaps Trump will convince crucial voters that he was vindicated by the justices. Another possibility is that crucial voters will realize that Trump responded to claims that he was an “oathbreaking insurrectionist” with procedural technicalities. By keeping January 6 in the public eye, the campaign to disqualify Trump may win in constitutional politics what was not gained in constitutional law.

The post It’s Too Soon to Say if the Colorado Ballot Case Was a Loss for Anti-Trump Forces appeared first on Washington Monthly.

Midway through his Supreme Court confirmation hearings, Brett Kavanaugh switched teams. He began as a potential player for the Supreme Court Nine in the nonpartisan law league, telling the Senate Judiciary Committee on the first day of hearings, “A good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.” He ended a faithful member of a Federalist Society squad in the partisan politics league. The investigation of Christine Blasey Ford’s allegations of sexual assault, he later raved to the same committee, was “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” as well as “revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” Gone was any air or even pretense of nonpartisanship. Kavanaugh appealed exclusively, and successfully, to the Republican Party.

Neal Devins and Lawrence Baum’s new book, The Company They Keep, seeks to explain why every member of the contemporary Supreme Court plays in the partisan politics league. The period following the retirement of Justices David Souter and John Paul Stevens is the first time in history that Supreme Court voting blocs correspond perfectly with the party of the appointing president. Bipartisan majorities and bipartisan dissents occurred in every major case decided by a fractured Court during the nineteenth and much of the twentieth centuries. Republican appointee Harry Blackmun and Democratic appointee Thurgood Marshall joined hands in the Roe v. Wade majority, as did Republican appointee William Rehnquist and Democratic appointee Byron White in the dissent. Hardly any Roberts Court decisions feature both bipartisan majorities and bipartisan dissents. Decisions like Trump v. Hawaii, in which the five conservative Republican appointees outvoted the four liberal Democratic appointees to uphold President Trump’s travel ban, are the norm.

Devins and Baum point to the usual suspects when explaining the increased partisanship of the Supreme Court. The Court is more partisan and polarized because both politics and the elites who disproportionately determine its course—and staff the federal judiciary—are more partisan and polarized. Contemporary presidents pay more attention to ideology when selecting Supreme Court justices than their predecessors did. Harry Truman appointed buddies; George W. Bush appointed movement conservatives. 

Courts were not so partisan through much of the twentieth century because most elites played in the same moderate liberal league. Both elite Republicans and elite Democrats during the New Deal and Great Society era favored racial equality, free speech, and secularism. The Warren Court articulated this elite consensus. In cases ranging from school segregation to school prayer to the rights of the accused, Republicans and Democrats on the Warren Court took the positions favored by the Republican and Democratic establishments even when those positions differed from those of a majority of citizens with less education, wealth, and social status. Some justices played on more activist teams than others, but divisions tended to be over which branch of government should pursue moderately liberal policies, not over the constitutionality of New Deal and Great Society liberalism. The partisan Roberts Court differs from the bipartisan Warren Court because elite Democrats and Republicans now differ on the crucial constitutional issues facing the nation.

The Company They Keep breaks from the literature on Supreme Court decisionmaking by describing judicial partisanship as a social phenomenon—a consequence, in part, of justices wanting approval from their elite peers. Devins, a law professor at William & Mary, and Baum, a political scientist at Ohio State, develop their argument by importing insights from social psychology. Everyone wants to be liked, social psychologists observe. Supreme Court justices are no different. If people particularly want to be liked by their peers, then Supreme Court justices will be “particularly interested in being held in esteem by the elite communities they are a part of.”

That people crave approval is, of course, as much common sense as social science. And Devins and Baum admit that no decisive proof of their thesis exists. They note, however, that justices frequently appear before elite audiences, and that many seem to care greatly how they are perceived by prominent reporters and leading law professors. They argue that conservatives may have been right to suspect Justices Harry Blackmun and Anthony Kennedy of drifting to more liberal positions over time in response to accolades from a left-leaning media, left-leaning academics, and prominent Washington socialites. On the other hand, Devins and Baum suggest that the consistent conservatism of Antonin Scalia and Clarence Thomas may be partly a consequence of their desire to be celebrated by the conservative elites who populate such organizations as the Federalist Society. 

Whether Devins and Baum are correct to think that the psychological need for elite approval explains Supreme Court decisionmaking is open to question. Their argument proceeds largely by speculation and may not be falsifiable. Supreme Court justices looking for adulation are never lonely. When their decisions consistently align with the wishes of their party, prominent elites hail them for advancing the “true” vision of the Constitution. When they occasionally break from their partisan allies, other prominent elites hail them for being independent. 

Nevertheless, Devins and Baum put Supreme Court watchers on the right track by focusing on the justices not simply as individuals, but as members of teams that play in partisan political leagues. That the majority on the Roberts Court plays for the conservative Federalist Society team may explain the direction of constitutional law far more than a mere desire for approval. Conservative justices advance the cause of their team by vigorously interfering with federal and state campaign finance restrictions and refusing to interfere with partisan gerrymanders. Team members provide the justices with cues as to what constitutes a conservative position. (Conservatives were initially divided, for example, over whether commercial advertising was constitutionally protected speech. As more conservatives inside and outside the Court came to insist on constitutional protection, younger conservatives began to identify protection as the appropriate conservative position.) The conservative justices rely on conservative legal historians for information about the original understanding of the framers, conservative social scientists for information about the impact of race-conscious measures, and conservative law professors for new legal arguments. Scalia told an interviewer in 2013 that he only read the Wall Street Journal and the Washington Times because the New York Times and the Washington Post were too liberal. Other justices may read more widely, but they are far more likely to rely heavily on Federalist Society team members for information about history, politics, and law than on elites who play for other teams.

To run the metaphor even more into the ground, we might speak of a Federalist Society division, fielding multiple squads within the partisan political league. Roberts plays for a team of conservatives who want a Court that moves slowly but surely toward a conservative constitutional vision, while Thomas’s team would upend the administrative state overnight in an effort to return to a reactionary vision of a lost constitutional order. Alito is part of a cultural conservative roster that has been known to occasionally spar with more libertarian Federalist Society members. 

Although the dominant team in the Federalist Society division has yet to be determined, there is practically no chance that a conservative justice switches to a centrist or liberal team. Few elite journalists or professors across the political spectrum had anything good to say about the system of capital punishment during the 1970s and ’80s, even as they disputed judicial responsibility for that system. The result was that even conservative justices on the Supreme Court were bombarded with cues, information, and legal arguments justifying limits on the death penalty, if not abolition. Members of the contemporary Federalist Society team, by comparison, play with people who are certain that murderers ought to be punished by death. They are bombarded with inputs justifying capital punishment. Thus, the capital punishment system survives, warts and all. The Company They Keep reminds us that today’s Supreme Court justices, far from calling balls and strikes, are very much in the game. And they’re playing to win.

The post How the Supreme Court Learned to Play Politics appeared first on Washington Monthly.