Ideology in the Supreme Court
by Lawrence Baum
Reviewed by George Waas
The recent confirmation hearing for U.S. Supreme Court Justice Neil Gorsuch was just the latest battle over the ideological composition of the high court. Since the question of ideology took root during the confirmation hearing of Robert Bork in 1987, just about every nominee has had to face such inquiry.
The emphasis on ideology is born in significant part of a desire for predictability; that is, if a nominee’s ideological bent can be discerned, it might be a solid predictor of how the nominee will vote on key issues once on the Court.
But until the publication of this book, scant attention had been given as to whether ideology of the justices might involve other and perhaps more important factors than simply asking confirmation hearing questions that will not be answered by nominees.
Baum conducts a statistical analysis of more than 150 Supreme Court cases using generally accepted modalities and concludes that, while justices often vote ideologically, their votes may be determined more by their disposition toward particular litigants. In other words, in his view, opinions flow not only from logical premises, but from psychological theories of human nature.
Baum defines ideology as a nearly complete set of political issue preferences that is shared by others in the same political system. In specifically addressing conservative vs. liberal ideologies, he examines cases in three broad areas: freedom of expression, criminal justice, and takings, because of the shift in the Court’s treatment of these types of cases over a broad sweep of time. To a lesser extent, he also analyzes cases involving racial and sex discrimination, religion, regulation of business, federal taxes, and personal injury and monetary claims against the federal government.
The author concludes that the identification of positions on issues as conservative or liberal develops through the creation of shared understandings among political elites. Values play an important role in driving positions, but so do people’s likes and dislikes for groups that are either potential beneficiaries of, or advocates for, certain policies.
Because of the impressive volume of statistical data, this is not a book that can be casually read by one who is not steeped in the language of statistics. However, what is clear is the author’s conclusion regarding the impact of basic human nature; personal likes and dislikes.
If predictability is a goal of the Senate confirmation hearing process, recall that it was the conservative state’s rights justices who in Bush v. Gore refused to allow the State of Florida to conduct the recount of the 2000 presidential election. It was the limited government conservative justices who, in Citizens United, held that the First Amendment permits corporations and unions to spend money on elections, while the liberal justices opposed such a broad reading of the First Amendment’s free speech guarantee. And it was conservative Chief Justice John Roberts whose critical fifth vote upheld Obamacare. To address these ideological shifts, Baum would invite inquiry into the respective relationships between the justices and the particular groups involved in the litigation. In this light, perhaps more nuanced questioning during confirmation hearings for the Bush, Citizens United, and Obamacare justices might have led to greater predictability in their results.
Baum maintains that the ideological element in decision-making should be viewed as complicated and fluid rather than simple and straightforward. He asks that greater attention be given to group interests as a vital element of the thinking and behavior of Supreme Court justices, and that further studies be done on the work he initiated in this book. Perhaps then, when future nominees appear before the U.S. Senate, inquiry will be focused on their preferred group interests, rather than the issue-directed questions that the nominees deftly avoid.
George Waas is a member of The Florida Bar.
The Supreme Court of Florida: A Journey Toward Justice, 1972-1987
by Neil Skene
Reviewed by Jeff Kottkamp
Neil Skene’s The Supreme Court of Florida: A Journey Toward Justice, 1972-1987, is well written, informative, and very entertaining. The book is the third in a series covering the history of Florida’s Supreme Court.
Part I of the book is called “The Reformation,” but just as easily could go by the one word title, “Change.” During the years covered in the book, the
state’s highest court experienced incredible change — not just in the makeup of the court, but in the way the justices were selected and how justices decided cases before them.
Much of the change on the court was the result of a deep-rooted scandal in Florida’s state government. In 1975, three members of the Supreme Court, including the chief justice, resigned. During that same period, the sitting lieutenant governor and three members of the state cabinet also resigned for nefarious reasons.
Florida was led out of this era of disrepute by Gov. Reubin Askew, who was the driving force behind the court reforms covered in the book. His efforts caused dramatic changes in how we select Supreme Court justices in the Sunshine State. Gov. Askew’s goal was to restore the integrity and independence of the court by taking politics out of the process.
The court described in the book was very different from today’s Florida Supreme Court. A typical day for the justices in the early 70s began with the delivery of coffee in china on a silver platter brought to chambers by a black butler wearing a white coat. Lobbyists and lawyers would routinely visit justices in their chambers — especially if they had a case before the court.
The court’s journey toward justice took giant leaps with a series of firsts: the first Jewish justice (Arthur England), the first black Justice (Joe Hatchett), and the first woman on the Florida Supreme Court (Rosemary Barkett).
The biographies of justices in the book focus on who they were as people and what life experiences helped shape them. Those experiences ultimately shaped the decisions they made on the bench.
Part II of the book, “The Life of the Law,” covers the evolution of jurisprudence in the state’s highest court. The behind-the-scenes view of the court includes a meeting in Chief Justice England’s living room to decide a last-minute appeal in the Spenkelink death penalty case. Justices watched the movie, Deep Throat, in the basement of the Supreme Court to determine if such movies met the constitutional standard for obscenity.
The evolution of not just the people on the bench, but of the law in Florida is covered in detail. The dramatic shift from contributory negligence to comparative fault in Hoffman v. Jones, the imposition of strict liability in products liability in West v. Caterpillar, the landmark Canakaris divorce case, and a variety of death penalty, open government, and media law cases are described in excellent detail.
The Supreme Court of Florida: A Journey Toward Justice, 1972-1987 is not just a book for judges and lawyers. Anyone interested in history, social change, government reform, and law will find the book very engaging. Excerpts from the book can be viewed on the Supreme Court Historical Society website at www.flcourthistory.org/Books.
Jeff Kottkamp is president of Jeff Kottkamp, P.A. He was Florida’s 17th lieutenant governor from 2007-2011, and served as acting governor of the State of Florida on June 18, 2008.
The Hooker, the Dancer, and the Nun: A Pine Island Mystery
by John D. Mills
Reviewed by Marcy L. Shaw
Three young women, all with distinctly different personalities, meet in college in 1995. Lacy Turner, nicknamed “the hooker” because of her love for fishing, Susan Kelly, of privileged upbringing, nicknamed “the dancer” because of her love for dancing at the many parties she would attend, and Patricia Hendricks, nicknamed “the nun” due to her strong faith and will to keep her virginity throughout high school and her college years. At the University of Florida in Gainesville, the readers are introduced to the three characters and their very diverse lifestyles.
Flash forward 20 years to courtroom 6B of the Lee County Courthouse in Ft. Myers. Lacy Turner is before the court accused of the gruesome murder of her friend, Susan Kelly, in addition to the disappearance of Patricia Hendricks. What was supposed to be a relaxing girls’ weekend on a houseboat in the Gulf of Mexico turns out to be a nightmare of epic proportions. The highly experienced and witty prosecutor, Frank Powers, is determined to raise his 92 percent conviction rate against Lacy’s friend and defense attorney, Amanda Blayne, who had previously been discredited in the Miami legal community due to her illicit affair with her married supervisor at the U.S. Attorney’s Office. Frank Powers delivers a powerful and compelling opening statement. The prosecution parades witness after witness to the stand and strategically lays the groundwork for a very convincing motive for murder. Facebook rants and angry text messages paint a colorful picture and may very well be the nails in Lacy’s coffin.
Lacy cannot defend herself to the jury, having been rendered unconscious by tequila and with no recollection of any events that happened prior to the police arriving. However, the defense is meticulous and methodical in its cross-examination of the prosecution’s witnesses in the hopes of interrupting the state’s momentum. What follows is four days of extraordinary litigation culminating with a verdict that no reader could have predicted. Author John D. Mills does an outstanding job of keeping the reader engaged and wanting more. A Ft. Myers native, he peppers this marvelous and modern crime thriller with his vast knowledge of boating, fishing, and Southwest Florida history. Note, this book contains adult content.
Marcy L. Shaw is a member of The Florida Bar.