Vol. 43 No. 2 · 21 January 2021

Cynical Realism

Randall Kennedy on the biases of the Supreme Court

4234 words

TheSupreme Court of the United States settles disputes between the Congress, the presidency and the judiciary, determines the meaning of federal statutes, allocates authority between states and the federal government, and decides whether governments, state and federal, have encroached on rights in violation of the federal constitution, the supreme law of the land. It is the court which ruled against racial segregation in public schools, which ordered states to allow women some access to abortion, which directed Richard Nixon to release incriminating tapes, which ordered states to permit same-sex marriage, and which rejected Donald Trump’s last-ditch pleas for a judicial coup d’état. It is also the court which ruled that African Americans, no matter their status, free or enslaved, are not citizens of the United States, that women could lawfully be prohibited from practising law because of their gender, that government-sponsored segregation of the races implied no unjust racial hierarchy, and that the American military committed no violation of federal constitutional rights when, during the Second World War, it ordered the detention of people of Japanese ancestry regardless of their citizenship. Alexander Hamilton described the judiciary as the ‘least dangerous branch’ of government, since it could neither wage war nor impose taxes. Clearly, though, the Supreme Court doesn’t want for power, sitting above 850 federal judges in lower courts.

The size of the Supreme Court is determined by Congress, which has allowed it to fluctuate between five and ten justices. Since 1869 the number has been nine – eight associate justices presided over by a chief justice whose vote is worth the same as those of his colleagues but who, according to custom, has an enhanced administrative authority. For example, the chief justice assigns who shall write opinions for the court when he is part of the majority; if the chief is in dissent, the senior justice in the majority does the assigning. The current chief justice is John Roberts, who was nominated in 2005 by George W. Bush. Clarence Thomas, the most senior associate justice, was nominated in 1991 by George H.W. Bush. Stephen Breyer was nominated in 1994 by Bill Clinton, Samuel Alito in 2005 by George W. Bush, and Sonia Sotomayor, the first Latinx on the Court, in 2009 by Barack Obama, who also nominated Elena Kagan the following year. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett were all nominated by Donald Trump during his single term in office.

Before a nominee can take his or her seat on the court, they must be confirmed by a majority vote in the Senate. For a long period, confirmations were rather sleepy affairs culminating in overwhelming votes in favour. More recently they have become a theatre of partisan warfare. The Senate confirmed Kavanaugh by 50 votes to 48 with only one Democrat voting in the affirmative; Barrett was confirmed by 52 votes to 48 without a single Democrat vote.

The purposes, procedures, traditions, functions and authority of the Supreme Court have been sharply questioned lately. One matter of contention is the tenure of Supreme Court justices. Once they have been nominated by the president and confirmed by the Senate, then taken their oaths of office, they occupy their seats for life, unless they retire or are removed from office after impeachment by the House of Representatives and conviction by the Senate (something that has yet to happen). It has long been argued that tenure frees judges from immediate dependency on politicians and voters (though most state court judges are elected), but some observers are newly alarmed by the prospect of physically and mentally diminished senior citizens hanging on to power for decades, then seeking to influence the choice of successor by stepping down during the term of a president they favour. Although the calls for reform come mainly from liberals, the conservative law professor Steven Calabresi has been one of the most vocal proponents of a constitutional amendment that would stipulate a single 18-year term for justices. Calabresi notes that no other major democracy gives the jurists on its highest court life tenure, and that only one of America’s fifty states does so.

The increase in discussion about the tenure of justices has taken place in the wake of the death in 2016 at 79 of Antonin Scalia after 29 years on the court, and the death in 2020, aged 87, of Ruth Bader Ginsburg after 27 years on the court. Both, at the time of their deaths, had been trying to hold on until a president to their liking was elected. Both failed. But the consequences of their failures diverged dramatically. Conservatives prevented Obama from filling the seat left vacant by Scalia. The Republicans in the Senate, led by Mitch McConnell, refused even to consider Obama’s nominee, Merrick Garland. Acting to obstruct Garland eight months before the presidential election of 2016, McConnell argued that whomever the American people chose as their new chief executive should be the one to nominate a new justice. Democrats cried foul. But McConnell held firm, backed by an unwavering phalanx of Republican senators, and Obama was deprived of what would have been his third Supreme Court appointment. As a consequence, when Donald Trump unexpectedly won the presidency, he immediately had a Supreme Court vacancy to fill, which he was able to do handily since the Senate remained under McConnell’s control. Trump nominated Neil Gorsuch, whom many Democrats regard as irredeemably tainted by the circumstances of his ascension.

Democrats have felt aggrieved for years on account of the political demographics of the Supreme Court; fifteen of the last twenty justices have been nominated by Republican presidents. Their resentment intensified when they were unable to prevent Republicans from quickly seating a replacement for Ginsburg even though she died only weeks before November’s presidential election, with McConnell ramming through the nomination and confirmation of Amy Coney Barrett. What had happened to his argument that the electorate should have a voice in selecting a new justice in a presidential election year? Now he qualified it by noting that in 2016 the president was a Democrat and the Senate majority was Republican, while in 2020 the president was Republican with a majority Republican Senate. The hypocrisy was blatant, but that didn’t matter. The Senate confirmed Barrett strictly along party lines.

Americans are deeply conflicted about the Supreme Court. Sometimes they see the justices as figures who should, ideally, merely apply, not make, the law. Unlike politicians, who are supposed to make policy, the justices – so the theory goes – are not. They are legal technicians who carry out policies articulated by the constitution or statutes. This view of judging as mechanistic and apolitical is widespread and influential (judges who are perceived as conforming to it are lauded for ‘judicial restraint’), and it is reinforced by the journalistic convention of distinguishing the ‘political’ branches of government – the executive and legislative – from the judicial branch.

This conception of judging as a self-denying, uncreative, non-political enterprise is constantly reiterated by the justices themselves. ‘Courts have a vital responsibility to enforce the rule of law, which is critical to a free society,’ Barrett said at her confirmation hearing. ‘But courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.’ Thomas, at his confirmation hearing, stated that ‘a judge must not bring to … the court the baggage of preconceived notions, of ideology, and certainly not an agenda.’ Insisting on a sharp distinction between the roles of policymaker and judge, Thomas promised that as a judge he would try to ‘strip down, like a runner, to eliminate agendas, to eliminate ideologies’. Roberts, at his confirmation hearing, compared judges to baseball umpires: they should limit themselves to calling balls and strikes. The metaphor has caught on: it nicely captures the idea of judging to which Supreme Court nominees subscribe with virtual unanimity. Whatever their ideological bearings, they promise the senators that they will, if confirmed, mind their place, interpret and not make law, and to the best of their ability prevent their personal preferences from influencing their performance of their judicial duties.

The nominees’ dissembling has become entirely normalised. It is as if certain lies are no longer considered as such once enough people recognise them as ritualised falsehoods. In all likelihood none of the senators at the hearings takes seriously the nominees’ oaths to tell the truth, or sets any store by the honesty of the testimony. Elena Kagan once rightly derided the confirmation process as ‘a vapid and hollow charade’. The nominees stick to the script, keenly aware that the dominant political culture expects – indeed, demands – that they make the obligatory commitment to judicial self-abnegation. If a nominee were to speak candidly about their views in a confirmation hearing, they would be rejected, as Robert Bork was rejected in 1987. It is good that Bork was defeated: he was a thoroughgoing cultural and political conservative. But he did at least explain himself forthrightly.

Tolerance of evasion, obfuscation and lies is a big part of the crisis that hangs over American political culture. And bad faith suffuses the Supreme Court, starting with these farcical confirmation hearings, in which nominees are coerced or seduced into prevarication at the very moment they are held up before the public as tribunes of truth and fairness. It is of course impossible for justices to avoid making law, or to prevent their moral, political and ideological commitments from affecting their choices of what cases to hear, what votes to cast, and what ideas and rhetoric to use in rationalising their decisions. The justices act within traditions, routines and expectations that impose some constraints on what they do. But those constraints are much looser than many, including the justices themselves, like to admit. Several of the most important directives in the constitutional text – for instance the prohibition against denying ‘due process’ or ‘equal protection’ – are notoriously indeterminate: their origins are shrouded in ambiguity and their meanings have changed over time. Yet they are invoked in connection with some of the most volatile topics in American political life, the ones that generate the most insistent pulls on people’s emotions and commitments: abortion, capital punishment, economic inequality, electoral power, and the treatment of racial minorities, sexual nonconformists and other marginalised groups. Justices will adopt an interpretative methodology in one case that accords with the outcome they want, and then, often without a word of explanation, adopt a different interpretative methodology in the next case. The constitution and federal statutes have gaps that must be filled under the pressure of unanticipated controversies. Justices do the filling.

In 2018 Roberts issued another now famous description of judging which further reinforced the conventional view. He did this in defence of a federal trial judge to whom Trump had sneeringly referred as ‘an Obama judge’. ‘We do not have Obama judges or Trump judges,’ Roberts said. ‘What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.’ That reference to ‘doing their level best’ adds a bit of subtlety to an otherwise risible paean to apolitical judging. It suggests that while the intervention of personal opinion is unavoidable, judges at least try in good faith to restrain themselves and act according to the norms, formal and informal, that govern expectations of what courts will and will not do. That more nuanced conception of judging is consistent with the view of one of the most learned and meticulous analysts of American constitutional law, Richard Fallon. ‘All but the most uninformed or naive among us accept that the justices’ moral or political views influence their votes in some cases,’ Fallon writes in Law and Legitimacy in the Supreme Court.* Accepting this, he suggests, is merely sensible realism. He goes on to distinguish that version of realism from another version that is, to him, more troubling. He calls it ‘cynical realism’. According to Fallon, the cynical realist believes ‘that the justices simply vote their political preferences in constitutional cases, without regard to law, or that they are merely politicians in robes.’

Because I am one of these ‘cynical realists’, I want to offer a few words of clarification. Yes, I do think the justices are ‘politicians in robes’. No, I don’t think that they are ‘merely’ politicians who ‘simply’ vote according to their political preferences. Judges perform a variety of tasks depending on the problem at hand. In many cases, they are asked to resolve disputes that generate little ideological friction: that is the reason a substantial number of rulings are decided by lopsided margins. It is also the reason that a substantial number of divided rulings feature some ideological crossover, with one coalition of liberals and conservatives facing off against another coalition of liberals and conservatives. This, however, is not the category of cases in anticipation of which nominees are carefully vetted for ideological loyalty, those involving the most contested issues of public policy, such as gun control, abortion and the status of religion. In such cases, justices do act, inescapably, as policymaking politicians. Does this mean that they act without restraint? No. This would be impolitic. Justices, like other politicians, know their power is bounded by the power of others. With that in mind, they will sometimes subordinate their immediate preferences to a strategy calculated to generate greater returns in the long run. All that I and other cynical realists argue is that justices think strategically and use the available resources – constitutional or statutory texts, precedent, philosophical or methodological interventions, intuition, or force of personality – to push arguments aimed at securing the outcomes they favour.

A recent issue of the Harvard Law Review featured a remarkable example of cynical realism, written by Michael Klarman, another leading analyst of constitutional law. His article, ‘The Degradation of American Democracy – and the Court’, appeared as the foreword to the annual issue of the Review devoted to the previous year’s Supreme Court term. In what is perhaps the most prestigious venue for public law commentary in American legal education, Klarman excoriates Trump and the Republicans in Congress for conduct that is, in his view, racist, plutocratic, antagonistic to human rights, and subversive of essential tenets of self-governance by the people and for the people of the United States. He accuses Trump of indulging in incipient authoritarianism, and charges the Republican Party with complicity in his misdoings while engaging in illicit independent efforts to entrench its own power at state and national levels. In addition, Klarman indicts the Supreme Court, or at least its conservative majority, for failing to protect racial and religious minorities, and for issuing dubious rulings on issues of democratic governance that almost invariably benefit the Republican Party.

Fallon agonises over the actual and perceived legitimacy of the Supreme Court. He worries that it has acted in ways that give ammunition to its most severe critics. ‘Current Supreme Court practice,’ he complains, includes ‘more than a few deviations from interpretive methodological regularity and argumentative good faith’. The justices ‘can and should do better’. He beseeches them to conduct themselves in a fashion that will put beyond reasonable dispute the question of whether the court’s decisions warrant deference as rulings of law as opposed to exercises of power. And he leaves the reader with the impression that, in his estimation, the justices are likely to conduct themselves more appropriately in the years ahead. Klarman, by contrast, sees the court as an illegitimate facilitator of democratic degradation. He complains that it has a Republican majority today only because McConnell, in an illicit act of undemocratic chicanery, ‘stole’ a seat after Scalia’s death.

This is not the first time the Supreme Court has faced intensive criticism. In the aftermath of Brown v. Board of Education, the decision in 1954 that ended state-sponsored racial segregation in schooling, 101 white segregationist members of Congress signed the Southern Manifesto, which accused the court of a ‘clear abuse of judicial power’ and vowed to use all lawful means to nullify the decision. Segregationist attorneys repeatedly lambasted the justices in publications aimed at practising lawyers, including the journal of the American Bar Association, the country’s most influential organisation of attorneys. In academic publications, the justices were criticised for being ‘result oriented’ ‘judicial activists’. For the most part, though, the severest criticism of the court’s commitment to racial desegregation came from downmarket sources on the political right.

Klarman’s article is admirably free of the sycophancy, fear, opportunism and awe that often causes legal academics to genuflect before the justices. Some leading law professors clerked for justices who aided them immeasurably in their professional advancement. (Six of the current justices were once Supreme Court clerks, including the chief justice, who clerked for a justice who had also been a Supreme Court clerk.) It is understandable they might be hesitant to condemn an institution and a community to which they feel gratitude. In turn, these academics want to advance the careers of their students, and are right to suspect that unbridled criticism of the Supreme Court will diminish the influence of their letters of recommendation. Some of them practise before the Supreme Court, and are mindful that any criticism perceived as disrespectful might lessen their efficacy as advocates. Perhaps Klarman, who clerked for Ruth Bader Ginsburg when she was a court of appeals judge, has also felt some of these pressures, but he has resisted them, delivering a powerful polemic that presses three key points.

The first is that constitutional text, judicial precedent and jurisprudential methodology are much weaker constraints on justices’ conduct than we are given to think. Justices have resources that make it possible for them to slip these hindrances when there is sufficient incentive to do so. This is true of all of them, whatever their ideological inclination. As Klarman observes, when it suits the purposes of both conservative and liberal justices to be originalists – interpreting a constitutional provision as it was understood by its framers – they do so. When deferring to history does not suit their purposes, they don’t. Similarly, he writes:

Conservative justices favour an originalist methodology to interpret vague constitutional phrases when the issue is gay marriage or abortion, but not when it is campaign finance regulation or race-based affirmative action, which are difficult to invalidate on originalist grounds. Liberal justices do not purport to be originalists, but are happy to argue in such terms when originalist evidence supports their conclusions … Conservative justices accuse liberals of being a ‘threat to American democracy’ when the court rules that same-sex marriage is a constitutional right, but do not hesitate themselves to invalidate a local school board’s efforts to integrate its schools or gun control measures enacted by city councils. Government paternalism deeply offends the conservative justices, except when they embrace it … Precedents are not to be lightly overruled, except when ‘there are strong grounds for doing so’ … In some doctrinal areas, government motive is everything, but in others it is irrelevant … The court will not decide more than is necessary to resolve the matter before it, except when it does; and the court will not decide issues unless properly presented, unless it feels like doing so … With so many diametrically opposed practices and maxims of interpretation to choose from, how could constitutional interpretation not be thoroughly political?

Klarman’s second point is that the Supreme Court has for some time now been reliably biased towards outcomes favourable to Republicans. One thinks immediately of Bush v. Gore, the case arising from the presidential election of 2000, in which the Supreme Court, to the shock of many, intervened in the counting of votes in Florida, issuing a ruling that assured the election of George W. Bush. Bush v. Gore stands for the proposition, Klarman writes, that ‘if justices care enough about a case’s outcome, the law goes out the window.’ Since that notorious ruling – which Klarman credibly labels the court’s ‘most absurd opinion in a highly consequential case’ – Republican justices have continued to generate case law highly favourable to the interests of the Republican Party. In some decisions the court has facilitated the aggregation of power by sectors of the population that tend to be Republicans, such as the super-rich, who have benefited from rulings invalidating restrictions on campaign contributions. In other decisions the court has displayed gross indifference to impediments to political participation faced by sectors of the population that tend towards the Democrats. The most egregious of these was Shelby County v. Holder (2013), in which the court invalidated a crucial section of the Voting Rights Act of 1965. Although Congress had extended the Act, as it had done several times, the court ruled that a vital remedy was no longer reasonable given the dramatic increases in black voter registration since the 1960s. This prompted one of Ginsburg’s most memorable rebuttals. Invalidating the Act’s most effective remedy on this basis, she wrote, ‘is like throwing away your umbrella in a rainstorm because you are not getting wet’. As soon as Shelby County was announced, racially targeted voting impediments returned in a significant number of districts.

Klarman’s third point is that the rot so dramatically exposed by the ascension and misrule of Donald Trump can be arrested only through an array of extraordinary reforms, some of which could be accomplished legislatively, but others only by constitutional amendment. He urges states and the federal government to make voter registration and voting easier. He recommends the elimination of the electoral college, the body of state representatives that actually chooses the president, a choice that need not go to the candidate who wins the national popular vote (as in 2016, when Hillary Clinton won the popular vote but Trump triumphed in the electoral college). He advocates ending the current arrangement whereby each state is assigned two senators in Congress regardless of its population – a regime under which Wyoming has the same senatorial power as California, whose population is 66 times bigger. Klarman also proposes enlarging the Supreme Court in order to make up for McConnell’s ‘theft’ of 2016.

Neither Klarman nor anyone else has set out a plausible political path to achieve any of this. The degradation of democracy that he describes blocks the reforms he proposes. The Republican Party will do its formidable best to thwart reform and will be largely united in doing so. Even with a slim majority in Congress, the Democrats will still not be powerful enough to prevail. For one thing, they are divided: some are restorationists who simply want to go back to the ‘good old days’ before Trump; others want reform but are afraid of increasing polarisation. Klarman isn’t altogether pessimistic. He notes that reformism has overcome extreme polarisation and anti-democratic entrenchment in the past, and that in the future American politics will be influenced by cohorts of younger citizens who are racially and ethnically more diverse, more liberal and more experimental than their elders. He puts no faith in the assumption that America will be rescued by the redemptive power of its political institutional design, or in the courts as a bulwark protecting democracy and fairness. ‘How this story ends,’ he says, ‘may depend, to an uncomfortable degree, on dumb luck.’

What should we make of the fact that the Supreme Court rejected Trump’s efforts to enlist it in nullifying Joe Biden’s election? The big case was Texas v. Pennsylvania, in which the Texas attorney general, Ken Paxton (who is under indictment for securities fraud), petitioned the court to invalidate the electoral results in four of the states that Biden won. Seventeen other Republican state attorneys general signed up to this effort, as did 126 Republicans in Congress. The court ruled against Texas, showing a united front dented only by a rather technical quibble voiced by Thomas and Alito. I am relieved by the justices’ action but do not take much comfort from it. For the Supreme Court to have acceded to the Trumpists, given the breadth of Biden’s electoral margins and the weakness of the petitioner’s arguments, would have been too extreme a departure from standard operating procedure for public opinion and the political elites to countenance. A closer contest, however, along with more arguable propositions on behalf of a less ostentatiously obnoxious figure, might well yield a different response.

Although anxiety about the court is spreading, there is little chance that major reforms – the end of life tenure, for instance, or substantial enlargement of the number of justices – will be attempted anytime soon. Relief at the ejection of Trump will dull the sense of danger and urgency required to drive reforms of that magnitude. The Biden Democrats are at heart moderate restorationists. And the party of Trump – remember that he received more than seventy million votes – will remain sufficiently influential to stymie the changes needed to address the constitutional and other flaws that have been so vividly revealed over the past few years. The Republican justices are unlikely to take any action that is so out of keeping with accepted protocols that it calls into being a determined and united opposition. Rather, they will act calmly, quietly and deliberately to entrench the policies propelling the degradation of democracy in America.

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Vol. 43 No. 6 · 18 March 2021

Randall Kennedy’s reference to Justice Roberts’s absurd analogy between judging and baseball umpiring brings to mind a long ago interview with the umpire Bill Klem (LRB, 21 January). When asked if he had ever called a pitch a ball when it was really a strike, or vice versa, Klem replied briskly: ‘It ain’t nothin’ till I call it.’

Scott Herrick
Rio Rancho, New Mexico

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