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Tuesday, April 02, 2019

Balkinization Symposium on Devins & Baum, The Company They Keep

At Balkinization, a symposium is starting on a new book by Neal Devins and Lawrence Baum, The Company They Keep: How Partisan Divisions Came to the Supreme Court. The first entry is by Rick Hasen. If it is perhaps a little eager to make a place for the arguments he has made in his own recent book, that seems quite natural, and the post is enjoyable on its own terms. I look forward to the other symposium entries as well and am happy to commend the symposium to readers. 

I have Devins & Baum's book, which is congenial to my interest in social class and the American legal profession. (My interest is in law professors, who are perhaps--and perhaps not coincidentally--more eager to talk about inequality than about social class, and more eager to talk about inequality and class as they apply to others than they are to talk about how it describes and affects us personally as law professors. There are exceptions, but that's my general impression.) I have skimmed parts of it but haven't read it yet, so I can't comment on it much. I can at least provide the publisher's description of the book: 

Are Supreme Court justices swayed by the political environment that surrounds them? Most people think "yes," and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however.

As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of. The evidence is strong: Justices take cues primarily from the people who are closest to them and whose approval they care most about: political, social, and professional elites. In an era of strong partisan polarization, elite social networks are largely bifurcated by partisan and ideological loyalties, and the Justices reflect that division. The result is a Court in which the Justices' ideological stances reflect the dominant views in the appointing president's party. Justices such as Clarence Thomas and Ruth Bader Ginsburg live largely in a milieu populated by like-minded elites. Today's partisanship on the Court also stems from the emergence of conservative legal networks such as the Federalist Society, that reinforce the conservative leanings of Republican appointees. For the Warren and Burger Courts, elite social networks were dominated by liberal elites and not divided by political party or ideology. A fascinating examination of the factors that shape decision-making, The Company They Keep will reshape our understanding of how political polarization occurs on the contemporary Supreme Court.

As Hasen writes, "Devins and Baum offer a psychological model positing that Justices, like others, are the product of the world around them, and Supreme Court Justices travelling in elite social circles seek affirmation and approval from these elites." Hasen argues that this kind of influence would have taken one form during an era of greater elite consensus, but that the growth of polarization has created a "politically polarized elite world," with dual elites and dual supporting institutions and social networks that can each provide affirmation or disapproval. The existence of these polarized elite worlds "both shapes and reflects how Justices view their jobs and decide how to vote, leading to a new polarization on the Supreme Court."

Usefully, Hasen emphasizes "the role of the 'Celebrity Justice,' a phenomenon which Devins and Baum acknowledge near the end of the book. Scalia, and later Ruth Bader Ginsburg, became rock star Justices, drawing adoring crowds who celebrate these lawyers as though they were teenagers meeting Beyoncé. If we are thinking about the psychological effects on Justices getting affirmation that they are on the right path, cult-like worship can only make the assured even surer in their convictions. This seems especially dangerous during polarized times."

I could not agree more on this point. The Notorious RBG phenomenon (or Scalia worship) and the cult of personality and celebrity it represents, however understandable (I'm speaking here not of politics, but of Justice Ginsburg and the value of having previously under-represented role models), is bad for our already oversized view of the courts, bad for our politics, bad for the justices themselves, who hardly need further encouragement in thinking well of themselves and taking confirmation of their views from the like-minded (and who risk an increasing willingness to profit from these cults, whether personally or, as the line of Ginsburg products seems to have become, in creating a family business), and for us. I feel the same about the black-tie dinner appearances and selfie opportunities at FedSoc conferences, which may seem harmless and trivial enough to those who attend and participate in this adulatory culture but is not. While the connection between the celebrity justice phenomenon and political polarization may be clear, its connection to the idea of elite culture is perhaps less so. At a minimum, though, I might suggest that I would feel less worried about elites if they considered a fundamental characteristic and requirement of their position to be a quality of independence and maturity of mind, skepticism toward bromides and hero worship, and resistance toward consumer culture and its colonization of politics and governance. The celebrity justice phenomenon hardly contributes to those qualities; and without them, there is good reason to doubt that our "elites" will act in a way fully worthy of the positions of trust and privilege they occupy.    

The book (insofar as I have glanced at it) and the Hasen post emphasize polarization. I hope at least one or more contributor--perhaps Frank Pasquale? or perhaps an intervention by Mark Tushnet, who's not on the list of symposiasts?--will take a somewhat different approach to this question. From a centrist or center-left position and, most important, from a position within the elite, the polarization focus suggests that "liberal" and "conservative" legal elites occupy two radically different and separate worlds. That is certainly the usual theme of many comments on blogs like these or on more pernicious and shallow social media. From what I might call by way of shorthand a more American Affairs  or Baffler perspective, however, that polarization may be less important than the common ties and assumptions that still connect many across any elite sector, including that of law and the courts (and the legal academy). Liberal and conservative elites are still elites, and share many common cultural backgrounds, assumptions, and manners and mores. Their list of what "just isn't done" may be longer than the list of whatever divides them. The norms they pick up from Yale or Harvard and appellate clerkships may make them more alike than they think, despite whatever purports to divide them. Whether the (these days, mostly hypothetical) paper on one's doorstep in the nicer sectors of Arlington, Chevy Chase, the Upper West Side, Austin, or Ann Arbor is the Wall Street Journal or the New York Times may seem a great difference to their readers and a trivial one to others residing outside these circles altogether.

Indeed, to those outside these circles the fierceness of these debates within a small and relatively closed community may suggest the degree to which these fights remain a form of luxury activity, or as much a matter of self-image as of a genuinely outward-looking perspective. Fierce debates over political representation in the legal academy usually focus on whether we are hiring too many elite center-left types and not enough elite center-right types. It would be nice if our palette were a little wider, a little less focused on whether, as it were, one's rep tie is blue or red: if it included more genuinely heterodox views and backgrounds, both left and right. I doubt this is possible for the judiciary or elite law firms; I would like to think, admittedly with what is almost certainly undue optimism, that it's still marginally possible for the legal academy, although just about everything associated with the hiring process these days, just as much (if differently) than in previous eras, seems designed to kill those hopes.

Given that Balkinization is itself an elite site populated by elite writers, it would be nice to see a rude or disturbing argument along those lines somewhere in the discussion. Regardless, I look forward to the discussion. And I offer my hope that symposium contributor Linda Greenhouse, who among other things figures in the book, will write a more self-examining contribution rather than one that focuses mostly on, say, the right and its networks. That's a perfectly worthy subject, but one she has written on plenty already. As someone deeply connected to both the liberal elite and its culture and networks generally and the American Constitution Society specifically, she has other resources to offer. She is well positioned to spill "'secrets," talk about how networks and their funding and coordination (or lack thereof) work on her side of the ostensible divide, look at how various cultural or political assumptions feed into the granting or withholding of praise, ask how many op-eds or columns by people within her networks (or by her) are deliberately aimed at the justices as readers or at the justices' social and professional networks, and generally to engage in self-examination and self-criticism. That kind of post would be educational to people like me, who are more than privileged but still peripheral to those kinds of circles and generally not in the room when elites speak more frankly than they do for public consumption. I don't expect any of this, to be hones. But it would be useful. (And of course I would be just as eager to learn more about the same phenomena within elite conservative circles, although those are generally located elsewhere than the academy and are, I think, more subject to reporting by news institutions I still partly trust than are liberal groups and networks.)       


Posted by Paul Horwitz on April 2, 2019 at 12:41 PM | Permalink


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