Now that Justice Kavanaugh is confirmed we can expect a spate of articles saying that the new majority on the Supreme Court will cause the sky to fall.
In his recent article, The Anti-Carolene Court, Nicholas Stephanopoulos, a professor at University of Chicago Law School now and at Harvard Law School beginning in 2020, makes the serious charge that in cases concerning elections the best explanation of the Roberts Court’s decisions is that partisan Republicans control it. His arguments are weak and tendentious, but they are very important because they will be used to support the growing movement on the left for court packing. The partisan label provides a possible justification for drastic political intervention.
Stephanopoulos’ underlying thesis is that the Roberts Court is not following the Carolene Products Footnote 4, which in one of its famous paragraphs, suggests the Court should give heightened review to legislation that “restricts the political processes that ordinarily can be thought to bring about the repeal of undesirable legislation.” One problem at the outset of his analysis is that while Stephanopoulos recognizes that the Supreme Court is not following much of the rest of this footnote’s framework of analysis any longer, he does not reflect on the notion that that there may be larger forces at work than partisanship in its desuetude, like the waning of progressive jurisprudence, a jurisprudence that at one time had both Republican and Democratic adherents. (Indeed, the author of Carolene Products was a Republican). Moreover, he fails to acknowledge that this footnote also called for substantial scrutiny of legislation that violates the Bill of Rights (more on that when we get to Stephanopoulos’ unconvincing treatment of the campaign finance cases at the Roberts Court).
Stephanopoulos’ argument for the partisanship of the Roberts Court founders both in terms of its general argument and in its details. At the broadest level, he claims that the outcomes in a series of cases related to election law—such as campaign finance cases, including Citizens United, Rucho v. Common Cause, which refused to apply judicial review to gerrymandering, and Shelby County v. Holder, which invalidated a portion of the Voting Rights Act—cannot be explained by adherence to any one interpretive principle, such as federalism, judicial restraint, precedent, or originalism. Voila, the better explanation is partisanship, because—he claims—these decisions all favor Republicans.
The jurisprudential difficulty with the argument is that Supreme Court decisions can rarely be explained by a single principle. Indeed, the favored view of most academics is that the Court should weigh different modalities of interpretation, including such matters as precedent, text, original understanding, constitutional structure, and the appropriate judicial role—the latter itself a more complicated concept than judicial restraint which may play out differently in different kinds of cases. And while I am an originalist, albeit one that recognizes some claims of precedent, even I recognize that in a Court with only two fully fledged originalists, opinions are going to have to contain a variety of arguments and considerations to attract five votes. Perhaps Stephanopoulos could show us that the decisions make no sense as a deployment of all modalities considered together but he does not attempt to do this before rushing on to his charges of partisanship.
Some of his details are also rather crude. For instance, Stephanopoulos argues that Citizens United undermined precedent because it overruled two recent cases. As the Citizens United court also explained, the cases it overruled were themselves in tension with an older line of cases that had refused to reduce speech rights on the basis of corporate identity. Thus, Citizens United can plausibly be understood as restoring the overall fabric of prior law. He also assesses whether a case is originalist or not by how much space it spent on originalist arguments. As an originalist, I would evaluate them by how good they are.
The article is also wrong in arguing that all the decisions help the Republican Party. Gerrymandering, as Stephanopoulos himself recognizes, can be practiced by both parties. He principally “proves” the decision helps the Republican Party by showing that the politically driven amici in favor of Rucho’s decision to insulate gerrymanders from judicial review were Republican political actors. This observation is a thin reed on which to code the decision as partisan. It may be that the decision helped more Republicans than Democrats right now, because there are more Republican than Democratic controlled state legislatures. But surely life tenured justices of the Supreme Court, unlike politicians with short-term interests, can be credited with understanding that this fact will change in the future, likely as soon as the 2020 census, given recent Democratic gains in the states.
Moreover, Stephanopoulos does not address the way that gerrymandering review might be applied selectively in a way that benefits Democrats, at least in the many states with so-called Missouri plans, where judges skew further to the left than the politics of their state because the bar is involved in choosing them. These judges thus might be expected to take a more stringent review of Republican gerrymanders. That is the kind of concern about the consequences of putting the judiciary into a political thicket resonates with Rucho‘s justifications for keeping the judiciary out of the process.
Stephanopoulos’s treatment of campaign finance is troubling. First, a restriction on speech (and the Court has correctly understood that discriminating against money used for political speech discriminates against speech) is legislation that, to quote Carolene Products itself, “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The very Carolene Products framework that Stephanopoulos celebrates recognizes that less of a presumption of constitutionality applies in such circumstances and thus stricter scrutiny may apply.
Second, on Stephanopoulos’ own reasoning, the political science on which he relies does not show that the decisions by the Roberts Court striking down restrictions on giving for political speech is a boost to Republicans. He argues that the studies show that greater spending in elections helps the extremes because big donors have strong ideological priors. This also helps incumbents. Neither of these advantages advance Republican interests per se. Indeed, the most reviled Roberts Court campaign finance case, Citizens United, was decided in 2010 when Congress was controlled by Democrats—a party whose larger number of incumbents presumably could have immediately taken advantage of it.
To be sure, restricting money in politics does have partisan effects, but Stephanopoulos ignores them. Money given by citizens is relatively equally distributed among Republicans and Democrats. If citizens and the largely nonprofit corporations they create cannot make their voices heard in politics, the political voices that will become even more dominant will be the media (who strongly influence the political agenda in the short term), and academics who set the agenda in the longer term through their writing and influence with students. Journalists lean strongly leftwards. And it hard to find any appreciable representation of conservatives among social scientists or humanities professors at our major universities.
Thus, if we follow the logic of this piece, we could just as easily accuse Stephanopoulos of being overly partisan for favoring campaign finance restrictions that will help Democrats, particularly when he omits a key portion of the Carolene Products footnote that permits him to label all these decisions as inconsistent with its tenor.
But that would be no less uncharitable than his treatment of the Roberts Court. In assessing its performance, there are salient questions to consider: First, what is the appropriate way to interpret the Constitution in these cases? Second, are the various Roberts Court decisions correctly decided under that view? Stephanopoulos’ article does not substantially advance our understanding of these issues, but instead stokes the flames of partisanship and polarization.