Ideology in the Supreme Court

by Lawrence Baum

Overview

Ideology in the Supreme Court is the first book to analyze the process by which the ideological stances of U.S. Supreme Court justices translate into the positions they take on the issues that the Court addresses. Eminent Supreme Court scholar Lawrence Baum argues that the links between ideology and issues are not simply a matter of reasoning logically from general premises. Rather, they reflect the development of shared understandings among political elites, including Supreme Court justices. And broad values about matters such as equality are not the only source of these understandings. Another potentially important source is the justices' attitudes about social or political groups, such as the business community and the Republican and Democratic parties.

The book probes these sources by analyzing three issues on which the relative positions of liberal and conservative justices changed between 1910 and 2013: freedom of expression, criminal justice, and government "takings" of property. Analyzing the Court's decisions and other developments during that period, Baum finds that the values underlying liberalism and conservatism help to explain these changes, but that justices' attitudes toward social and political groups also played a powerful role.

Providing a new perspective on how ideology functions in Supreme Court decision making, Ideology in the Supreme Court has important implications for how we think about the Court and its justices.

Product Details

ISBN-13:	9780691204130
Publisher:	Princeton University Press
Publication date:	06/09/2020
Pages:	288
Product dimensions:	6.12(w) x 9.25(h) x (d)

About the Author

Lawrence Baum is professor emeritus of political science at Ohio State University. His books include Judges and Their Audiences (Princeton), The Puzzle of Judicial Behavior, and Specializing the Courts.

Read an Excerpt

Ideology in the Supreme Court

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By Lawrence Baum

PRINCETON UNIVERSITY PRESS

Copyright © 2017 Princeton University Press
All rights reserved.
ISBN: 978-0-691-17552-2

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CHAPTER 1

Ideology, Issues, and Group Affect

When people talk about the U.S. Supreme Court, whether they are scholars, commentators, or interested observers, they regularly use the language of ideology. Decisions, justices, and the Court as a whole are described in terms of their liberalism or conservatism.

Yet in all this talk about ideology, there is surprisingly little attention to its meaning. Why are certain positions on affirmative action or government health care programs or regulation of campaign finance labeled as conservative or liberal? Even scholars who study the Court typically apply these labels to issues that the Court addresses without probing their sources. Much of the political science research on the Court does rest implicitly on one conception of the linkages between ideology and the issues in the Court, but the validity of that conception generally goes unexamined.

This book is about the functioning of ideology in the Supreme Court. I argue that the ideological element in decision making by the justices is not as simple as it is generally thought to be. By probing how and why the justices' ideological stances are applied to the issues and specific questions that the Court addresses, I think, we can gain a better understanding of both the Court and ideology.

A good place to start is with the Court's 2000 decision in Bush v. Gore, which raised significant questions for people who study the Court. The most fundamental question stemmed from the Court's 5–4 division along ideological lines in the case. Of course, that division was hardly unusual. Rather, it was the apparent basis for the division that concerned some scholars. In a reversal of the justices' usual positions, the conservative justices favored a claim under the equal protection clause of the Fourteenth Amendment and the liberals opposed that claim. The key to that reversal, as some scholars saw it, was simple: every justice voted in favor of the candidate whom that justice presumably favored in the election.

Writing shortly after the decision, Sanford Levinson contrasted the justices' responses to Bush v. Gore with the usual form of decision making in the Court: "Though judges are 'political,' the politics are 'high' rather than 'low'; that is, decisions are based on ideology rather than a simple desire to help out one's political friends in the short run." Levinson and his fellow legal scholar Jack Balkin later elaborated on this idea: "We should make a distinction between two kinds of politics — 'high politics,' which involves struggles over competing values and ideologies, and 'low politics,' which involves struggles over which group or party will hold power." Political scientist Howard Gillman distinguished between high and low politics in his own analysis of Bush v. Gore, contrasting "a form of relatively consistent ideological policymaking" with "mere partisan favoritism."

The dichotomy between high and low politics is both insightful and valuable. Yet the difference between high and low politics is not quite as sharp as it might seem. Balkin and Levinson referred to high politics in terms of values. However, values in their usual meaning are not the only basis for the divisions between liberal and conservative justices that would fit in the category of high politics. Those ideological divisions also reflect favorable and unfavorable attitudes toward social groups whose interests are affected by decisions and toward political groups that advocate positions on issues in general and on individual cases. The justices who participated in Bush v. Gore appeared to act on their rooting interests in the success of one political party, but the role of rooting interests in the decision was not an anomaly. Justices' positive feelings about certain social and political groups and their negative feelings about others help to create ideological divisions in a wide range of cases in which partisan considerations do not play a direct part.

An example that Levinson used to differentiate between high and low politics highlights that point. Levinson contrasted the partisan motivations he perceived in Bush v. Gore with cases in which Democratic justices vote to uphold legislative districting maps that maximize the number of African American legislators and in which their Republican colleagues vote to strike down those maps, "in spite of reasonably good evidence that" the maps "run contrary to the institutional interest of the Democratic Party." That is a powerful example, one that effectively highlights the distinction between high and low politics that Levinson and others have made. But if the justices do not act on a partisan basis in these districting cases, their affect toward groups in society may still influence their responses to those cases. Indeed, their votes likely are shaped to a degree by their affect toward the African American community and toward political groups that favor or oppose efforts to maximize the community's representation in government.

The conception of ideological decision making as value-based has deep roots in political science scholarship on the role of ideology in the Supreme Court. That scholarship incorporates a second and related conception, the idea that justices work deductively from broad premises to positions on specific issues and then to positions on the questions that arise in individual cases. This conception too is accurate only in part. The identification of certain issue positions as conservative or liberal occurs through a social process in which justices and other political elites work out what positions are appropriate for conservatives and liberals to take. In that process of developing shared understandings about the meaning of ideology, general premises are only one basis for those understandings.

In the first two sections of this chapter, I develop a perspective on the linkages between issues and ideology in the Supreme Court and in the world of political elites of which the Court is a part. The first section looks at those linkages in general terms. The second section focuses on affect toward social and political groups (more simply, group affect), with particular attention to its role in the linking of issues to ideology.

The final section of the chapter lays out an analytic approach with which to identify the sources of linkages between ideology and issue positions in the Supreme Court. That approach makes use of changes in the linkages between ideology and issues over time. On certain issues the ideological polarity of the justices has shifted, in that the relationship between justices' stances on a liberal-conservative scale and their positions on an issue came to take a different form. Inquiries into the reasons for those changes provide a way of identifying the reasons why the polarity of an issue takes a particular form at any given time.

Chapters 2 through 4 carry out that analytic approach by applying it to three issues. The first is freedom of expression, an issue on which a relatively recent change in ideological polarity in the Court has received considerable attention. The second is criminal justice, an issue with a polarity that we take for granted because it has lasted for so long, but one that has not always existed in the Court. The final issue is takings, a relatively obscure issue on which the Court's ideological polarity has shifted twice in the past century.

Chapter 5 continues the inquiry by analyzing the ideological polarity of other issues in the Court, giving particular attention to variation in that polarity among cases falling under the same issue. Chapter 6 pulls together the evidence and considers the implications of the study for our understanding of the Court and of the ways that ideology functions in decision making.

Ideology and Issues: General Considerations

In considering the relationship between ideology and issue positions, the first task is to make clear what I mean by ideology and by issues. As John Gerring demonstrated, the term "ideology" has been used in a bewildering variety of ways. I am concerned with the two facets of ideology that receive the greatest attention from students of American politics.

The first is ideology as a set of policy preferences or policy positions. Hans Noel defined ideology as "a nearly complete set of political issue preferences that is shared by others in the same political system." Noel's definition is another way of describing the well-known concept of constraint among issue positions that Philip Converse emphasized. One set of positions that is widely shared by members of political elites in the United States has been labeled conservative, while another set has been labeled liberal. In the United States, people who are highly educated and politically sophisticated tend to show high levels of constraint, holding predominantly what are considered to be liberal positions or predominantly conservative positions on issues. The existence of constraint facilitates placing people's policy preferences on an ideological scale.

In an analogous process, we can place government officials on an ideological scale on the basis of their votes and decisions on policyquestions. Both scholars and other observers of government routinely do so for legislators and judges. These policy positions do not necessarily match officials' personal policy preferences; they may stem from other sources as well. The extent to which preferences and positions do match can be expected to vary with the attributes of policy-making bodies.

One important complication is that policy preferences and positions do not fall perfectly along a single dimension. Indeed, some scholars have concluded that a multidimensional characterization of policy preferences and positions is superior to a unidimensional characterization. There is considerable evidence for this conclusion about attitudes of the mass public.

A single dimension fits the preferences of political elites better than it does for the mass public. Still, it is uncertain whether the policy positions of people in government are better described in unidimensional or multidimensional terms. As the analyses of congressional voting by Keith Poole and Howard Rosenthal suggest, the answer may change over time. Major early studies of Supreme Court voting by Glendon Schubert and David Rohde and Harold Spaeth identified multiple dimensions. More recently, quantitative studies of the Court tend to assume a single dimension, in part because of the popularity of unidimensional measures of justices' policy preferences and their voting behavior. Among scholars who have probed this question, some favor a unidimensional interpretation of the Court, others a multidimensional interpretation.

The second key facet of ideology is individuals' self-identifications. A majority of adults in the United States are willing to identify themselves as conservatives or liberals even when they are given the appealing alternative of "moderate." The same is true of political activists and elites, such as national convention delegates. Identification with an ideological group can be an important part of a person's social identity. That is especially likely in a time like the current era, when partisan and ideological identifications tend to reinforce each other.

But just as issue positions can vary among people whom we would identify as liberals or as conservatives, the strength of identifications with an ideological group can also vary. Any degree of identification as a liberal makes that affiliation an element of a person's social identity, but liberals differ in the importance of that element. Thus, when I refer to people's assimilation of shared understandings about what position someone with their ideological identification should take on an issue, it should be kept in mind that as people's identifications with an ideological group strengthen, so does the influence of those shared understandings.

Inevitably, the two facets of ideology are related empirically. Even in the general population, there is a substantial correlation between ideological self-identification and attitudes on political issues, one that increases with political sophistication. If national convention delegates are typical, as they probably are, the correlation for political elites is very strong.

Students of mass political behavior give considerable attention to ideological self-identifications. This is less true of scholarship on public officeholders, primarily because of the difficulty of obtaining accurate self-identifications. In research on the Supreme Court, for instance, justices are nearly always characterized in terms of where their votes and opinions place them on an ideological scale rather than their self-identifications. But it is likely that identification as a conservative or liberal is a significant element in the social identities of many and perhaps most justices. That possibility needs to be taken into account in analyzing the workings of ideology in the Court.

Issues can be defined at varying degrees of generality. In the Supreme Court, the right to counsel could be considered an issue. Alternatively, cases involving that right could be considered part of a broader issue, the procedural rights of criminal defendants. In turn, that issue can be treated as a subset of criminal justice, which also includes the interpretation of statutes that define crimes and establish rules for sentencing. I use the term "issue" to refer to all those levels. The issues that are considered in the next three chapters range from very broad (criminal justice) to moderately broad (freedom of expression) to moderately narrow (takings).

Even relatively narrow issues in this sense of the term can be distinguished from the specific legal and policy issues that appellate courts address in cases, which I call "questions" rather than "issues." For my purposes, the right to counsel is an issue; the choice of rules to determine whether a defendant was deprived of that right by a lawyer's poor performance and the application of those rules to a particular defendant are questions.

The linkages between issues and ideology could be studied in any policy-making body. The Supreme Court is an especially good subject of such a study because justices are relatively free to act on their policy preferences. The justices' life terms and their general lack of interest in other jobs enhance their insulation from external influences. With their nearly complete power to set their own agendas, justices select primarily cases in which strong legal arguments can be made on both sides, so the legal merits of cases constrain them less than the legal merits constrain judges on most other courts.

Students of the Court do disagree strongly about the extent to which external influences and the state of the law influence justices' choices. But it seems clear that policy preferences play a more powerful role in shaping those choices than they do in most other policy-making bodies. Moreover, even if other considerations have substantial effects on the justices' choices, differences in policy preferences almost surely are the dominant reason for disagreements among the justices in decisions. This attribute facilitates inquiry into linkages between issues and ideology.

It is important to keep in mind that policy preferences are not synonymous with ideology. Even if justices' ideological stances are characterized as falling along multiple dimensions, individual justices have some policy preferences that do not fit any of these dimensions. But the fact that the preponderance of variation among the justices in votes on case outcomes can be described with a small number of dimensions — to a considerable degree, a single dimension — indicates that patterns of differences among the justices can be understood primarily in ideological terms.

The conceptions of linkages between issues and ideology as deductive and value-based occupy a central place in research on the Supreme Court. In the classic and influential analysis by Glendon Schubert, induction from patterns of justices' votes was used to identify justices' issue positions and values, but the patterns were interpreted in deductive terms. Schubert conceived of political and economic ideology as the primary values guiding the justices. Most issues that the Court addressed fell into those two categories, and Schubert indicated that in each category liberal and conservative issue positions were derived from the premises of political or economic liberalism and conservatism.

Similarly, in this formulation, issue positions were translated deductively into votes in individual cases. Schubert used psychologist Clyde Coombs's theoretical work to describe a process in which the justices' votes on the questions to be addressed in specific cases rested on the relationship between the justices' issue positions and those specific questions on a linear ideological scale. If a justice's i-point was to the left of the j-point for a case, the justice would cast a liberal vote.

In the past few decades, students of judicial behavior seldom have described their conception of how ideology functions in the Supreme Court's decision-making process. For this reason it is not clear to what extent they would accept Schubert's formulation of a deductive process that works from values to issue positions to votes in cases. But Court scholars' treatment of ideology is usually consistent with that formulation, and it implicitly incorporates the deductive element of that formulation. In quantitative research, multivariate analyses of justices' voting behavior typically include a measure of their overall ideological stances. Similarly, analyses of the Court's collective decisions use measures of the Court's collective stance. Both usages rest on an assumption that general ideological stances translate into positions on issues and votes in cases.

(Continues...)

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Excerpted from Ideology in the Supreme Court by Lawrence Baum. Copyright © 2017 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

List of Figures and Tables ix

Preface xiii

Acknowledgments xvii

1 Ideology, Issues, and Group Affect 1

2 Freedom of Expression 40

3 Criminal Justice 85

4 Takings 130

5 Inquiries into Other Issues 162

6 Implications of the Study 184

Appendix: Methodology for Analysis of Cases and Decisions 201

References 227

Name Index 253

Subject and Case Index 257

What People are Saying About This

From the Publisher

"It is common, and surely correct, to note that Supreme Court justices often vote ideologically. It is also common, and also surely correct, to note that it is not as simple as that. Baum takes this as a starting point to explore just how—in a world in which ideological coalitions shape so many things—ideology permeates judicial decision making."—Hans Noel, author of Political Ideologies and Political Parties in America

"Very good scholars answer important questions that no one has answered before. Truly great scholars answer questions that no one has asked before. Such is the case with Lawrence Baum's Ideology in the Supreme Court. Using a mixture of quantitative and qualitative methods, Baum has written a thought-provoking book that clearly demonstrates that ideological polarity does not flow only from logical premises, but rather that, consistent with psychological theories of human behavior, group affect plays a substantial role."——Jeffrey A. Segal, Stony Brook University

"Close observers of the Supreme Court know that sometimes its conservatives and liberals flip sides. Using the examples of free speech, criminal law, and takings, with glances at other topics, Lawrence Baum develops a systematic account of why and how these shifts occur. In doing so, he deepens our understanding of how ideology—apart from political theories and preferences about outcomes—shapes the Court's decisions."—Mark Tushnet, Harvard Law School

"Baum offers a unique perspective on the Supreme Court. He makes a compelling case for reconsidering our traditional understanding of ideological voting on the Court, suggesting that justices' votes may be determined by their disposition toward particular litigants. Presenting a challenging new way to think about decision making on the Court, this is an important book."—Kevin T. McGuire, University of North Carolina, Chapel Hill

Editorial Reviews

Winner of the 2018 C. Herman Pritchett Award, Law and Courts Section, American Political Science Association

From the Publisher

"Baum persuasively illustrates the underlying complexity of ideology as not just a product of justices' values, but of the way justices' decisions are affected by social and political groups as well. According to Baum, by giving more attention to group affect as a source of polarity, scholars can gain a richer sense of ideology as an element in decision making in the Supreme Court."

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