JUNE 11, 2019
I PICKED UP The Company They Keep with great excitement. Between the government shutdown and the aftermath of the Justice Kavanaugh confirmation hearings, I wanted to learn more about the partisan divide in the Supreme Court and hear about it from Neal Devins and Lawrence Baum’s neutral and academic perspective. Unfortunately, their attempt fails in several ways.
The first, and perhaps most disappointing part of this book, is that it is somewhat already outdated given when this book was written. The Company They Keep was written prior to Justice Kavanaugh’s nomination and even prior to Justice Kennedy’s retirement. Thus, many of the theories and views raised in the book seem unconnected to what we all saw unfold in real time in recent history. For example, the book does not take account of how involved and knowledgeable the general public became during the Justice Kavanaugh confirmation hearings. Nor do the authors, at least at the time they wrote this book, take account of the eventuality that a sitting judge, and now a Justice, would claim, while testifying before the Senate Judiciary Committee, that his confirmation was being derailed by a Democratic conspiracy masterminded by a former president.
The second major problem with this book, is the lack of a clear target audience. One would hope that an author has a clear view of who their audience is when writing and that they develop their arguments with that audience in mind, providing background when necessary or using terminology common for those in their field. But we do not see that here. If this book was intended for academia, the discussions of the “science” and studies behind the conclusions are much too abbreviated to provide real analysis and the terminology used is too unsophisticated for an academic treatise. If, instead, the intended audience was the general public, there is a lack of anecdotes (until you get halfway through the book) to engage the average reader and a lack of necessary background for understanding the theories presented. The result is what appears to be an oversimplified academic journal note that primarily summarizes and catalogs the work of others, and which has been painfully stretched and expanded through unnecessary repetition to reach “book” length.
Putting these defects aside, the overarching question Devins and Baum ask is: What motivates our country’s Supreme Court Justices? In other words, what aspects of the political and social environment that these Justices are immersed in influence and shape the judicial decisions that they make? Devins and Baum believe that these motivations are what have led to what appears to be a polarization of the Court.
While this is not a novel theory by any means, the authors attempt to differentiate their theory by stating that they “disagree with those who see the Court as essentially independent of the political world and society, but [they] also disagree with those who see the Court as responsive chiefly to the other branches of government and the general public.” Instead, they believe that the Justices are influenced by a group of elites, be it a somewhat undefined group of legal (but not politicians), academic (but not all academics), and press (but not popular press) elites.
From this foundation the authors extrapolate that because the elites themselves have changed over time from a monolithic liberal community to a partisan divided community, so too have the Justices. This idea of a liberal elite running the world is nothing new. Turn on Fox News any night and you will hear similar statements. However, for those of us who are not Tucker Carlson fans, going along with Devins and Baum’s premise requires somewhat of a leap of “faith.”
First, you have to accept that the legal community is overwhelmingly liberal and has been since the early 1900s. However, anyone who has practiced the law knows that the legal community is in fact overwhelmingly conservative and not particularly friendly to women, people of color, or LGBTQ individuals. Second, for Devins and Baum’s theory to work, you have to assume that a Justice who has curried political attention and connections just to get nominated, let alone confirmed, is more enamored of the “prestige” that comes from praise from these nebulous elites than from that of the political engine that that Justice owes their career to. And lastly, you have to accept that sitting Justices are not strongly influenced by the non-elite social organizations that they already belong to (think religious organizations, regional networks, and ethnic/cultural groups).
While it seems hard, if not impossible, to believe that a Justice would turn aside their religious beliefs and ignore the condemnation of their church, synagogue, or the like for the praise of a mere NPR reporter, Devins and Baum do not seem to think that such an idea is worthy of serious discussion. This is particularly odd when you consider abortion (a particularly partisan issue), which is an issue that divides not only along political but also religious lines. If you want to argue that Justice Scalia’s judicial decisions on topics like abortion were influenced more by the praise he received from conservative elites at Federalist Society luncheons than his Catholic upbringing and beliefs, I think Scalia himself would have taken you to task.
Similarly, it is inaccurate to say that the Supreme Court is entirely distanced from the regular public and not influenced by non-elites. Take, for example, the RBG phenomenon. Surely Justice Ginsburg is aware of the movies written about her, the jewelry line spun off of her dissent collar, and the lines of Notorious RBG and Our Lady Justice clothing and workout wear. (I myself own a muscle tank with Justice Ginsburg’s face emblazoned on the front like a religious icon.) If anything, that level of celebrity probably serves to reinforce and perhaps influence her ethos of “liberalism” just as much as, say, the approval of a club of a mere couple dozen law students at an “elite” law school.
Moreover, much of the “data” used by Devins and Baum is unpersuasive. For example, you cannot truly extrapolate much from historical data about individuals crossing party lines to join important decisions when seven of the nine Justices on the Court at that time were from the same party. Nor is such historic data relevant to the makeup of the current Supreme Court given the differences in what made one a “Democrat” or a “Republican” a century ago. As the authors of this book discuss in depth, appointments to the Supreme Court have historically not been based solely on the partisan views of the president, but instead were often based on political or personal favors that needed to be paid or curried (President Truman and the more recent instance of President Reagan with Sandra Day O’Connor are examples presented in the book) or on single issues that a president wanted to push forward and which did not fall strictly along party lines (President Grant and President Franklin Delano Roosevelt, with his New Deal, also examples from the book).
Although there is much to disagree with regarding the author’s “elites” theory, Devins and Baum do make interesting points. First, that we are currently seeing a large polarization at all levels of society. This polarization is not necessarily new, but we have not seen such high levels of polarization since the late 1800s and early 1900s. This escalation of a polar divide between what we now might call Trumpers and Snowflakes has, as Devins and Baum note, been helped by concerted conservative efforts, such as the creation of entities like Fox News and the Federalist Society. In fact, both were born out of a desire to groom a conservative self-propagating network of likeminded individuals and both arose as polarization began to increase within our society.
Toward the end of the book, Devins and Baum expose how the Federalist Society became the conservative powerhouse and control center of much of our judicial and political worlds. The Federalist Society began as a way to locate, be it for judicial clerkships or governmental positions, conservative-minded law students and graduates. But once these individuals moved from their entry-level jobs and up the ladder, they began to act as gatekeepers, keeping out more liberal-minded or moderate-leaning job candidates. Thus, to stand out and reap the benefits of this network, individuals had to appear more and more committed to Federalist Society values, such as Originalism.
While this is all very intriguing and balances the liberal elites theoretical foundation of the book, it seems to be more of a symptom of partisanship than a contributing factor. After all, shouldn’t the liberal elites be coalescing into a strong anti–Federalist Society? The authors appear to think that these liberal elites were simply slower on the uptake and have had less time to organize. This is much akin to how Democrats did not realize how important local elections were to redistricting and how redistricting could change historically blue districts to toss-ups or red districts. In addition, as the authors appear to believe, the American Constitution Society is hampered by a lack of focus. This is because, as Devins and Baum note, the Democratic Party is seldom a single-issue party and liberals seem to place much more emphasis on diversity and identity-driven politics than on propagating an all-encompassing leftist dogma.
It is not clear where The Company They Keep leaves us on “How Partisan Divisions Came to the Supreme Court.” Is this a recent phenomenon? Were “partisan divisions” always there? Or are presidents simply becoming “smarter” in their appointments? And by that I mean that I think we can all agree that presidents are focusing more on finding committed partisans who will push their party’s overall ideals and goals. In fact, the book seems to acknowledge this by noting that while presidents in the past focused on using appointments to curry favor or pay back political favors or for single issues, this was in part because they did not realize how the appointments they were making could affect long-term political party goals. If anything, this last proposition makes more sense than Devins and Baum’s primary theory that some unknown and undefined elites were once all liberal, and now aren’t, and that is why the Supreme Court has suddenly “become” partisan.