Ideology in the Supreme Court
by Lawrence Baum
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.