Lawrence Baum: Ideology in the Supreme Court

When President Trump nominated Neil Gorsuch for a seat on the Supreme Court, Gorsuch was universally regarded as a conservative. Because of that perception, the Senate vote on his confirmation fell almost completely along party lines. Indeed, Court-watchers concluded that his record after he joined the Court late in its 2016-2017 Term was strongly conservative. But what does that mean? One possible answer is that he agreed most often with Clarence Thomas and Samuel Alito, the justices who were considered the most conservative before Gorsuch joined the Court. But that answer does not address the fundamental question: why are the positions that those three justices took on an array of legal questions considered conservative?

The most common explanation is that liberals and conservatives each start with broad values that they then apply in a logical way to the various issues that arise in the Supreme Court and elsewhere in government. But logic can go only so far to explain the ideological labels of various positions. It is not clear, for instance, why liberals are the strongest proponents of most individual rights that the Constitution protects while conservatives are the most supportive of gun rights. Further, perceptions of issues sometimes change over time, so that what was once considered the liberal position on an issue is no longer viewed that way.

Freedom of expression is a good example of these complexities. Beginning early in the twentieth century, strong support for freedom of speech and freedom of the press was regarded as a liberal position. In the Supreme Court, the justices who were most likely to support those First Amendment rights were its liberals. But in the 1990s that pattern began to change. Since then, when the Court is divided, conservative justices provide support for litigants who argue that their free expression rights have been violated as often as liberals do.

To explain that change, we need to go back to the period after World War I when freedom of expression was established as a liberal cause. At that time, the government policies that impinged the most on free speech were aimed at political groups on the left and at labor unions. Because liberals were more sympathetic than conservatives to those segments of society, it was natural that freedom of expression became identified as a liberal cause in the political world. In turn, liberal Supreme Court justices gave considerably more support to litigants with free expression claims than did their conservative colleagues across the range of cases that the Court decided.

In the second half of the twentieth century, people on the political left rethought some of their assumptions about legal protections for free expression. For instance, they began to question the value of protecting “hate speech” directed at vulnerable groups in society. And they were skeptical about First Amendment challenges to regulations of funding for political campaigns. Meanwhile conservatives started to see freedom of expression in a more positive light, as a protection against undue government interference with political and economic activity.

This change in thinking affected the Supreme Court in the 1990s and after. More free expression cases came to the Court from businesses and people with a conservative orientation, and a conservative-leaning Court was receptive to those cases. The Court now decides few cases involving speech by labor unions and people on the political left, and cases from businesses and political conservatives have become common. Liberal justices are more favorable than their conservative colleagues to free expression claims by people on the left and by individuals with no clear political orientation, but conservative justices provide more support to claims by businesses and conservatives. As a result, what had been a strong tendency for liberal justices to give the most support to freedom of expression across the cases that the Court decided has disappeared.

The sharp change in the Supreme Court’s ideological orientation in free speech cases is an exception to the general rule, but it underlines some important things about the meaning of ideology. The labeling of issue positions as conservative or liberal comes through the development of shared understandings among political elites, and those understandings do not necessarily follow from broad values. In considerable part, they reflect attitudes toward the people and groups that champion and benefit from particular positions. The impact of those attitudes is reflected in the ways that people respond to specific situations involving an issue: liberal and conservative justices, like their counterparts elsewhere in government and politics, are most favorable to free speech when that speech comes from segments of society with which they sympathize. When we think of Supreme Court justices and the positions they take as conservative and liberal, we need to keep in mind that to a considerable degree, the ideological labeling of positions in ideological terms is arbitrary. Justice Gorsuch’s early record on the Court surely is conservative—but in the way that conservative positions have come to be defined in the world of government and politics, definitions that are neither permanent nor inevitable.

BaumLawrence Baum is professor emeritus of political science at Ohio State University. His books include Judges and Their Audiences, The Puzzle of Judicial BehaviorSpecializing the Courts, and Ideology in the Supreme Court.

James Gibson: Voters Beware! TV ads may damage Supreme Court legitimacy

The right-wing Judicial Crisis Network has launched a $10 million advertising campaign to put public pressure on Democratic politicians who oppose President Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court.

While ideological fights over who controls the courts are nothing new, my research suggests that this use of political advertising to sway public opinion of a nominee may do real damage to the the institutional legitimacy of the U.S. Supreme Court in the eyes of the American people.

In Citizens, Courts, and Confirmations, Gregory Caldeira and I focused on the 2006 nomination of Samuel Alito to the U.S. Supreme Court. During that confirmation battle, proponents and opponents of Alito’s confirmation ran intensely politicized television ads trying to shape public opinion on the nomination.

Using surveys of public opinion, we demonstrated that the ads spilled over to infect support for the Court as an institution, subtracting from its legitimacy. In order to understand how and why this happened, it’s important to consider what political scientists (including Caldeira and I) have discovered is the main source of the Court’s legitimacy.

Despite the arguments of some judges to the contrary, the American people do not believe that judges somehow mystically “find” the law. They realize, instead, that judges’ ideologies matter, that liberal and conservative judges make different decisions, and that they do so on the basis of honest intellectual differences. This philosophy is called “legal realism,” and it is widely embraced by the American people.

But there is a difference between honest ideological differences and the politicization of the courts. When people believe that a judge “is just another politician,” or that courts are filled with such judges, legitimacy suffers. The American people do not think highly of politicians. Politicians are seen as self-interested and insincere. That means one can rarely believe what politicians say because they so rarely say what they believe. It is not ideology that Americans oppose, but rather the insincere and strategic way that contemporary politics is fought.

Our analysis discovered that it is not damaging to the Court when Americans recognize that judges hold different ideologies and that those ideologies strongly influence their decisions. But when judges cross the line, when they engage in overly politicized behavior—either on the bench or off—then the Court’s legitimacy is threatened. Scalia’s intemperate language in his opinions is one such example of judges venturing into partisanship; so, too, is Ginsburg’s attempt to influence last year’s presidential election. Still, events like these do not widely penetrate the consciousness of the American people, and so in the end, they likely have small effects on institutional legitimacy.

The same cannot be said of televised advertisements. Millions of Americans are exposed to these churlish and politicized ads, and so they take their toll. The lesson of these ads is too often the same: The “Supreme Court is just another political institution,” worthy of no more esteem than the other institutions of government. As this belief becomes widespread, the institution of the Court is harmed.

Our analysis demonstrates that while Alito got his seat on the Supreme Court, the court he joined had a diminished supply of goodwill among the Court’s constituents, the American people. It also makes clear that the upcoming nomination fights have implications beyond who does and doesn’t get a seat on the bench. At stake is the very legitimacy of the U.S. Supreme Court.

GibsonJames L. Gibson is the Sidney W. Souers Professor of Government at Washington University. He is the coauthor of Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People.