Today we have a very exciting guest post from Lincoln Caplan, author of American Justice 2016. Lincoln Caplan is a Senior Research Scholar and the Truman Capote Visiting Lecturer in Law at Yale Law School. He is author of The Tenth Justice: The Solicitor General and the Rule of Law; Skadden: Power, Money, and the Rise of a Legal Empire; Up Against the Law: Affirmative Action and the Supreme Court; and other books about legal affairs. He is a regular contributor to the New Yorker website, a member of the editorial board of the American Scholar, and a contributing editor of Harvard Magazine. He wrote about the Supreme Court as a member of the editorial board of the New York Times. In this post, published as the Supreme Court's term begins in the midst of a heated election season, he reflects on the relationship between the Court and politics.
The Supreme Court is on pace to decide fewer cases in the term beginning on October 3rd than the 80 or so it has decided on average in the past half decade. The 80 are barely more than half the number it decided each term a generation ago. It is too soon to view the current data as very significant, but the decline is striking nonetheless.
An obvious explanation is that the Court remains in enforced repose, deadlocked at 4-4 between conservative and liberal justices until the Senate approves a nominee for the ninth seat. The justices’ short-term reduction in the size of the Court’s docket is related to a persuasive explanation about the decline over the long-term. Ryan J. Owens and David A. Simon, in an empirical study of every Court term between 1940 when the Court decided 215 cases and 2008 when it decided 79 cases, concluded: “Ideology plays a role in the size of the Court’s docket. When Justices share a worldview, they decide more cases. When they sit on an ideologically fractured Court, they decide fewer cases.”
The current Court, of course, is ideologically fractured, evenly and deeply. Although the Court decided almost half its cases unanimously last term, which was consistent with the average during the previous six terms, virtually everyone who follows the Court agrees that the justice appointed to fill the late Justice Antonin G. Scalia’s seat will have an immediate and substantial effect on how the Court comes out in 5-4 rulings. Those decisions have recently made up about one-fifth of a term’s docket, usually in the most important cases.
If the justice is Merrick B. Garland, who, as of the start of the new term, remained in limbo on the 201st day of Senate inaction since President Obama announced his nomination, or is Hillary Clinton’s pick, he or she will give justices appointed by Democrats a majority for the first time since 1972, and will almost certainly become the fifth vote making up a liberal majority in key cases for the first time since Richard M. Nixon became president. If Donald Trump picks the justice, he or she will almost certainly join the Court’s conservatives to maintain the conservative majority.
As Obama wrote a decade ago in his book The Audacity of Hope, “If we’re honest with ourselves, we’ll admit that much of the time we are arguing about results – the actual decisions that the courts and the legislature make about the profound and difficult issues that shape our lives.” In that sense, he went on, “today’s constitutional arguments can’t be separated from politics.” The Supreme Court has the last word on the meaning of the Constitution, but the People, as the preamble to that document calls us, can have strong influence on that meaning, especially every four years in the election of the president. At a fateful political moment, ours is manifestly a political Supreme Court. It is a product of politics and a vital forum for resolving major political issues, with justices regularly casting votes that are best explained by their political beliefs.
Chief Justice John G. Roberts, Jr. seems dismayed by this idea. In February, when he joined the dean of New England Law School for a public conversation in Boston, he said, “We don’t work as Democrats or Republicans.” That seemed to be a retort to recognition by Court-watchers that, since 2010, when Elena Kagan was sworn in to fill John Paul Stevens’ seat on the Court, in ideologically divided 5-4 cases, the justices have regularly voted as Democrats and Republicans, in the sense of justices appointed by Republicans voting together and vice versa, and with Republican appointees usually comprising the majority of five.
This recent alignment made explicit what many Court-watchers have considered clear for decades. The political scientist Lee Epstein calls the Supreme Court of the past 47 years “the Republican Court,” beginning in 1969 when Richard M. Nixon appointed Warren E. Burger as Chief Justice. The Court moved rapidly to the right under Burger and its Republican-appointed majority. It kept moving in that direction markedly through the first decade of the Roberts Court, despite prominent Court decisions to the contrary, like last year’s ruling that the Constitution’s guarantee of the right to wed includes same-sex marriage.
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The job of a justice is different from the job of a senator, however, because while the Court is a political institution, it remains a legal one. How a justice approaches the law does not always track with his politics. Antonin Scalia was a vehement conservative, yet he broke from the Court’s other conservatives (and sometimes from liberals, too) in some areas because he read the law differently. For example, more than any other justice, he read broadly the Constitution’s guarantee to a criminal defendant that he has a right to face his accuser, with almost no exceptions.
A generation ago, political scientists who studied the Court often contended that what mattered were the results a justice reached, because he could choose whatever legal reasoning he needed, to reach the result he wanted. Now, the most persuasive scholarship is trying to elucidate “how judicial personality, understood in various ways, influences legal outcomes,” as the legal scholars Thomas J. Miles and Cass R. Sunstein wrote, “and how legal institutions constrain or unleash these influences” – how politics shapes law, yet how law constrains or unleashes politics.
That’s not as simple as saying that justices are politicians in robes, which is one reason why neither candidate has said much to explain the kind of justice he or she would appoint. Trump has suggested he would appoint justices favoring conservative results. “Even if people don’t like me, they have to vote for me. They have no choice,” Trump said in August. “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.”
Clinton has not done much better. In September, on a radio program, she said, “If I have the opportunity to make any Supreme Court appointments, I’m going to look broadly and widely for people who represent the diversity of our country, who bring some common-sense, real-world experience.” Each candidate has spoken of the Court as an extension of politics, while leaving up to voters how that would translate into picking a nominee for the Court.
Defenders of the Court claim that it retains its legitimacy—its trustworthiness—but there is no good measure of legitimacy and the ones that scholars use are imprecise and dubious. The latest Gallup poll, in any case, based on a survey done in July, found the Court’s approval at 42 percent, a low it has reached only once before in the past sixteen years, and its disapproval rating at a new high of 52 percent. “Gallup has documented that Americans’ more basic trust in government institutions has eroded in recent years,” the organization explained, “and the Supreme Court, often the most popular and trusted of the three branches of the federal government, has not been immune.”
Another explanation, though, is that Americans increasingly perceive the Court as a political institution on a par with the political branches and that the Court is doing an inadequate job, through its decisions and its opinions about them, of convincing the country that it also remains a legal one worthy of respect.
For the institution at the pinnacle of the American constitutional system, that is an ominous failure – and one only the justices can rectify.