The Supreme Court and Elites

This chapter develops the argument that is summarized in chapter 1. One lesson of social psychology is that Supreme Court justices are not single-mindedly devoted to making good law or good policy. Rather, they have multiple goals that include a concern for their reputations, especially how they are regarded by the elite groups of which they are part. As a result, while the general public may have an impact on the justices, they respond primarily to fellow elites. Indeed, the Court’s decisions on most controversial social issues such as affirmative action and same-sex marriage are more consistent with the policy positions of highly educated people than the positions of the public as a whole. Starting with the 1980 election of Ronald Reagan, elites have become less homogeneous; over the past 25 years, today’s elites increasingly reflect the growing partisan divide among liberal Democrats and conservative Republicans. Nonetheless, norms within the elite legal profession such as collegiality and legally oriented decision making shape the behavior of justices, sometimes counteracting the effects of ideology.

Summary of Book and Argument

This chapter provides an overview of the book. After documenting the Supreme Court’s movement toward ideological divisions that closely follow party lines, it explains why traditional political science models offer incomplete answers. The book then introduces a perspective based on social psychology that emphasizes the importance of elite audiences to the justices. It argues that the strongest influences on justices from outside of the Court are the elite social networks of which they are a part. Justices’ concern with their reputations in those powerful networks can dramatically shape their perspectives and their choices as decision makers in America’s highest Court.

The Court in a Polarized World

This chapter tracks the period after 1985, a time when party polarization transformed both presidential appointments to the Supreme Court and the elite social networks that the Justices were a part of. Starting with the 2010 appointment of Democrat Elena Kagan to fill the seat of liberal Republican John Paul Stevens, the Court’s ideological divide is also a partisan divide. This chapter explains the circumstances that propelled today’s partisan divide—circumstances that make it likely that the divide will persist. In particular, ideology is now a dominant feature of judicial nominations. Correspondingly, the conservative legal network and, with it, the Federalist Society plays a critical role in all aspects of the nomination process for Republican presidents. Once a conservative Republican joins the Court, moreover, the Federalist Society reinforces his or her conservativism through social interactions, speaking engagements, and much more. For their part, Democratic Justices are part of left-leaning social and political networks.

Elites, Ideology, and the Rise of the Modern Court

This chapter tracks the period up to 1985, a time when ideology was less relevant to judicial appointments and there was not a well-established conservative legal network. Limited polarization meant that there were liberal Republicans and conservative Democrats. It also meant that presidents paid less attention to ideology when nominating Justices and that Justices responded to elite groups that were not divided along ideological lines. During the New Deal, for example, Democrat and Republican elites backed economic regulation but were sharply split on civil rights and liberties. During the 1950s to 1980s, elite Democrats and Republicans leaned to the left; for this very reason, moderately conservative Justices became increasingly liberal during their tenure on the Court.

Conclusions

This final chapter summarizes and extends the book’s central arguments about how elite influences are integral in shaping Supreme Court decision making. In so doing, Devins and Baum take issue with those who see the Court as being largely independent of the political world and society. At the same time, they also disagree with those who see the Court as being responsive chiefly to the other branches of government and the public. Furthermore, the authors explain that party polarization is now ingrained in the Court—so much so that the partisan divide of today is likely to continue for the foreseeable future.