Ideology in the Supreme Court

Lawrence Baum

• Publisher: Princeton University Press
• Year: 2017
• ISBN:
  9781400885367
• Topic: Politik & Internationale Beziehungen
• Subtopic: Amerikanische Regierung

Ideology in the Supreme Court is the first book to analyze the process by which the ideological stances of U.S. Supreme Court justices translate into the positions they take on the issues that the Court addresses. Eminent Supreme Court scholar Lawrence Baum argues that the links between ideology and issues are not simply a matter of reasoning logically from general premises. Rather, they reflect the development of shared understandings among political elites, including Supreme Court justices. And broad values about matters such as equality are not the only source of these understandings. Another potentially important source is the justices' attitudes about social or political groups, such as the business community and the Republican and Democratic parties.The book probes these sources by analyzing three issues on which the relative positions of liberal and conservative justices changed between 1910 and 2013: freedom of expression, criminal justice, and government "takings" of property. Analyzing the Court's decisions and other developments during that period, Baum finds that the values underlying liberalism and conservatism help to explain these changes, but that justices' attitudes toward social and political groups also played a powerful role.Providing a new perspective on how ideology functions in Supreme Court decision making, Ideology in the Supreme Court has important implications for how we think about the Court and its justices.

1

Ideology, Issues, and
Group Affect

When people talk about the U.S. Supreme Court, whether they are scholars, commentators, or interested observers, they regularly use the language of ideology. Decisions, justices, and the Court as a whole are described in terms of their liberalism or conservatism.

Yet in all this talk about ideology, there is surprisingly little attention to its meaning.¹ Why are certain positions on affirmative action or government health care programs or regulation of campaign finance labeled as conservative or liberal? Even scholars who study the Court typically apply these labels to issues that the Court addresses without probing their sources. Much of the political science research on the Court does rest implicitly on one conception of the linkages between ideology and the issues in the Court, but the validity of that conception generally goes unexamined.

This book is about the functioning of ideology in the Supreme Court. I argue that the ideological element in decision making by the justices is not as simple as it is generally thought to be. By probing how and why the justices’ ideological stances² are applied to the issues and specific questions that the Court addresses, I think, we can gain a better understanding of both the Court and ideology.

A good place to start is with the Court’s 2000 decision in Bush v. Gore, which raised significant questions for people who study the Court. The most fundamental question stemmed from the Court’s 5–4 division along ideological lines in the case. Of course, that division was hardly unusual. Rather, it was the apparent basis for the division that concerned some scholars. In a reversal of the justices’ usual positions, the conservative justices favored a claim under the equal protection clause of the Fourteenth Amendment and the liberals opposed that claim. The key to that reversal, as some scholars saw it, was simple: every justice voted in favor of the candidate whom that justice presumably favored in the election.

Writing shortly after the decision, Sanford Levinson contrasted the justices’ responses to Bush v. Gore with the usual form of decision making in the Court: “Though judges are ‘political,’ the politics are ‘high’ rather than ‘low’; that is, decisions are based on ideology rather than a simple desire to help out one’s political friends in the short run.”³ Levinson and his fellow legal scholar Jack Balkin later elaborated on this idea: “We should make a distinction between two kinds of politics—‘high politics,’ which involves struggles over competing values and ideologies, and ‘low politics,’ which involves struggles over which group or party will hold power.”⁴ Political scientist Howard Gillman distinguished between high and low politics in his own analysis of Bush v. Gore, contrasting “a form of relatively consistent ideological policymaking” with “mere partisan favoritism.”⁵

The dichotomy between high and low politics is both insightful and valuable. Yet the difference between high and low politics is not quite as sharp as it might seem. Balkin and Levinson referred to high politics in terms of values. However, values in their usual meaning are not the only basis for the divisions between liberal and conservative justices that would fit in the category of high politics. Those ideological divisions also reflect favorable and unfavorable attitudes toward social groups whose interests are affected by decisions and toward political groups that advocate positions on issues in general and on individual cases. The justices who participated in Bush v. Gore appeared to act on their rooting interests in the success of one political party, but the role of rooting interests in the decision was not an anomaly. Justices’ positive feelings about certain social and political groups and their negative feelings about others help to create ideological divisions in a wide range of cases in which partisan considerations do not play a direct part.

An example that Levinson used to differentiate between high and low politics highlights that point.⁶ Levinson contrasted the partisan motivations he perceived in Bush v. Gore with cases in which Democratic justices vote to uphold legislative districting maps that maximize the number of African American legislators and in which their Republican colleagues vote to strike down those maps, “in spite of reasonably good evidence that” the maps “run contrary to the institutional interest of the Democratic Party.” That is a powerful example, one that effectively highlights the distinction between high and low politics that Levinson and others have made. But if the justices do not act on a partisan basis in these districting cases, their affect toward groups in society may still influence their responses to those cases. Indeed, their votes likely are shaped to a degree by their affect toward the African American community and toward political groups that favor or oppose efforts to maximize the community’s representation in government.

The conception of ideological decision making as value-based has deep roots in political science scholarship on the role of ideology in the Supreme Court. That scholarship incorporates a second and related conception, the idea that justices work deductively from broad premises to positions on specific issues and then to positions on the questions that arise in individual cases. This conception too is accurate only in part. The identification of certain issue positions as conservative or liberal occurs through a social process in which justices and other political elites work out what positions are appropriate for conservatives and liberals to take. In that process of developing shared understandings about the meaning of ideology, general premises are only one basis for those understandings.

In the first two sections of this chapter, I develop a perspective on the linkages between issues and ideology in the Supreme Court and in the world of political elites of which the Court is a part. The first section looks at those linkages in general terms. The second section focuses on affect toward social and political groups (more simply, group affect), with particular attention to its role in the linking of issues to ideology.

The final section of the chapter lays out an analytic approach with which to identify the sources of linkages between ideology and issue positions in the Supreme Court. That approach makes use of changes in the linkages between ideology and issues over time. On certain issues the ideological polarity of the justices has shifted, in that the relationship between justices’ stances on a liberal-conservative scale and their positions on an issue came to take a different form. Inquiries into the reasons for those changes provide a way of identifying the reasons why the polarity of an issue takes a particular form at any given time.

Chapters 2 through 4 carry out that analytic approach by applying it to three issues. The first is freedom of expression, an issue on which a relatively recent change in ideological polarity in the Court has received considerable attention. The second is criminal justice, an issue with a polarity that we take for granted because it has lasted for so long, but one that has not always existed in the Court. The final issue is takings, a relatively obscure issue on which the Court’s ideological polarity has shifted twice in the past century.

Chapter 5 continues the inquiry by analyzing the ideological polarity of other issues in the Court, giving particular attention to variation in that polarity among cases falling under the same issue. Chapter 6 pulls together the evidence and considers the implications of the study for our understanding of the Court and of the ways that ideology functions in decision making.

Ideology and Issues: General Considerations

In considering the relationship between ideology and issue positions, the first task is to make clear what I mean by ideology and by issues. As John Gerring demonstrated, the term “ideology” has been used in a bewildering variety of ways.⁷ I am concerned with the two facets of ideology that receive the greatest attention from students of American politics.⁸

The first is ideology as a set of policy preferences or policy positions. Hans Noel defined ideology as “a nearly complete set of political issue preferences that is shared by others in the same political system.”⁹ Noel’s definition is another way of describing the well-known concept of constraint among issue positions that Philip Converse emphasized.¹⁰ One set of positions that is widely shared by members of political elites in the United States has been labeled conservative, while another set has been labeled liberal. In the United States, people who are highly educated and politically sophisticated tend to show high levels of constraint, holding predominantly what are considered to be liberal positions or predominantly conservative positions on issues.¹¹ The existence of constraint facilitates placing people’s policy preferences on an ideological scale.

In an analogous process, we can place government officials on an ideological scale on the basis of their votes and decisions on policy questions. Both scholars and other observers of government routinely do so for legislators and judges. These policy positions do not necessarily match officials’ personal policy preferences; they may stem from other sources as well. The extent to which preferences and positions do match can be expected to vary with the attributes of policy-making bodies.

One important complication is that policy preferences and positions do not fall perfectly along a single dimension. Indeed, some scholars have concluded that a multidimensional characterization of policy preferences and positions is superior to a unidimensional characterization. There is considerable evidence for this conclusion about attitudes of the mass public.¹²

A single dimension fits the preferences of political elites better than it does for the mass public.¹³ Still, it is uncertain whether the policy positions of people in government are better described in unidimensional or multidimensional terms. As the analyses of congressional voting by Keith Poole and Howard Rosenthal suggest, the answer may change over time.¹⁴ Major early studies of Supreme Court voting by Glendon Schubert¹⁵ and David Rohde and Harold Spaeth¹⁶ identified multiple dimensions. More recently, quantitative studies of the Court tend to assume a single dimension, in part because of the popularity of unidimensional measures of justices’ policy preferences¹⁷ and their voting behavior.¹⁸ Among scholars who have probed this question, some favor a unidimensional ...