Tea Party and the Right

The 'Tea Party' Supreme Court: How Conservatives Turned the Highest Court in the Land to Ideological Extremism

Why conservatives on the Supreme Court have become ideologically extreme, rigid and scornful of compromise.

However the Supreme Court rules on the Affordable Care Act – or affirmative action and the other pending issues – the decisions are unlikely to do much to enhance the respect the Court receives from the public.  

Three-quarters of the pubic believe that the justices are influenced by their personal or political views and the Court’s overall public approval ratings have fallen significantly over the last quarter-century. The results stem in part from a relentless conservative attack on the legitimacy of the Court. Indeed, 30 percent of the public believes that the Court is “too liberal” while only 24 percent believe it is “too conservative” – despite independent evaluations indicating that this is the most conservative Supreme Court since at least the 1930s.

But the reason this Court can be termed a “Tea Party” Supreme Court does not necessarily turn on the content of the decisions, which like this week’s immigration rulings, are often a complex mix of the justices’ individual approaches.  Instead, the Court merits a “tea party” label because of the efforts to stack the Court with doctrinaire extremists, and to promote a methodology that has much in common with the Tea Party congressmen who threaten to bring government to a standstill. That methodology stakes out extreme views as a matter of principle, insists on loyalty to the principles ahead of loyalty to institutions, and rules out compromise even when necessary to protect institutional integrity – or the country’s well-being. The result, applied to the Supreme Court, does not just lower the public esteem accorded the Court as an institution; it weakens the very idea of the rule of law. 

To understand more about why this Court can be termed a Tea Party Court, let's start with a discussion of judicial methodology. The United States is a common law country. That means that the courts often resolve disputes in accordance with precedent. In doing so, judges examine prior cases to determine the governing principles and explain how those principles apply to the new cases before them. When deciding constitutional or statutory matters, the courts start with the language of the Constitution or the text before them. Nonetheless, the language of the texts is often vague or imprecise. The Commerce Clause of the Constitution, for example, reads that the Congress shall have power to regulate “Commerce with foreign Nations, and among the several States.” The clause says nothing about health care. 

In interpreting such a clause, most justices refer to earlier cases examining the limits of congressional power. In his confirmation hearings, Chief Justice John Roberts observed that “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.” This methodology makes judicial decision-making contextual, rather than doctrinaire, and allows gradual evolution over a series of decisions.

Principles of judicial restraint further suggest that the Court should be reluctant to overturn prior decisions and should defer to the political branches of government when the Constitution is unclear. If the Court simply applied prior precedent or gave Congress the deference on economic matters that became the norm in the 1930s, most legal authorities believe it would uphold the Affordable Care Act. 

The Republican war on the Supreme Court, however, started not only with disagreement with the substance of the Warren Court’s decisions on equal rights and protection for criminal defendants, but with a desire to “take back the Court,” and base it on an assertion of Republican ideology. Republican disappointment with moderate justices such as David Souter made partisan activists ever more determined to appoint movement conservatives. These appointees combine inflexible personalities and habits of mind with an ideological approach to judicial decision-making. The result guarantees a divided Court and a move away from the principles of judicial restraint that burnish the Court’s institutional prestige. 

How might the idea of a “conservative personality” explain this combination? While party loyalties may reflect family or community membership, conservative versus liberal world views correspond more closely to underlying values orientations.  Studies indicate that these worldviews tend to emerge at relatively young ages and change little thereafter.

In The End of Ideology, political scientist John Jost explains that, “Conservatives consider people to be inherently unequal and due unequal rewards; liberals are egalitarian. Conservatives venerate tradition and—most of all—order and authority; liberals believe planned change brings the possibility of improvement.” Conservatives are more likely to see the world in terms of black and white, to prefer fixed and unchanging moral views, and to be more comfortable with passing judgment and imposing punishment. Liberals tend to be more flexible, tolerant, and distrustful of hierarchy or certainty (See John R. Alford, Carolyn L. Funk & John R. Hibbing, "Are Political Orientations Genetically Transmitted?")

Republican activists have sought judicial nominees who combine conservative personalities with predictable and unchanging views and judicial philosophies that also stake out doctrinaire and uncompromising positions. Justice Antonin Scalia is thus the favorite justice for most Republican presidential candidates. He has advanced a narrow view of “originalism” as the only legitimate method of constitutional interpretation despite the fact that most constitutional scholars reject it, like Daniel Farber and Suzanna Sherry, who outline their position in Judgment Calls: Principle and Politics in Constitutional Law.

Justice Scalia's theory of constitutional interpretation would give less importance to precedent, and instead, maintain that justices should substitute their own reading of constitutional text in accordance with their assumptions about what the words would have meant in 1787. He defends his approach in terms of clarity, certainty and consistency. As Farber and Sherry explain, Scalia accordingly views the common law itself, with its emphasis on narrow, evolving, contextualist judgments, with suspicion. In insisting on a particular judicial methodology, he also gives less weight to many of the principles of judicial restraint that enhance public perception of judicial legitimacy. These include, besides adherence to precedent, encouraging unanimous decisions, avoiding the appearance of partisanship and conflicts of interest, and deferring to the political branches of government. Confident that he has discovered the “truth” of what the Constitution means, Scalia sees less need for the type of restraint designed to limit the role of the judiciary more generally.   

This combination of ideologically conservative views with methodological inflexibility has contributed to the fracturing of the Court.  Scalia’s fellow conservatives, for example, do not always with agree his approach.  Multiple opinions further contribute to the public perception that the justices vote largely on the basis of their political views. 

In other eras, the Court has attempted to decide controversial cases, such as Brown v. the Board of Education, which ended mandated school segregation, unanimously. Doing so, however, requires putting the Court’s institutional integrity ahead of the individual justices’ personal views.  The conservatives who stake out a radical theory of constitutional interpretation as the only legitimate one see little reason to compromise and their unwillingness to compromise gives those who disagree with them no reason to compromise in return. The result has been a series of 5-4 decisions on critical issues.

These decisions started with Bush v. Gore, which handed the 2000 election to George W. Bush, and they have continued through the Citizens United decision on campaign finance legislation and a series of less heralded decisions. The mechanisms that once served to avoid such appearances no longer hold. 

The Court’s decision on the constitutionality of the individual mandate in the Affordable Care Act thus comes at a time when neither political party has a reason to defer to the Court. Republicans continue to criticize the legitimacy of judicial decisions whenever they disagree with them. Democrats have no reason to defer to a Court that the Republicans have very publically stacked with ideological purists. In their recent critique of American politics, Thomas Mann and Norman Ornstein conclude that:

"The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition."

They could easily be describing not just Tea Party members of Congress, but the conservatives on the Supreme Court. This approach has discredited Congress. There is no reason to expect a different result on the Court. And there is no role for the rule of law when courts are ideologically stacked with extremists who are immune to facts and closed to any viewpoints but their own. 

 

 

June Carbone is co-author, with Naomi Cahn of 'Red Families v. Blue Families' (OUP 2010) and the forthcoming 'Family Classes' (OUP 2012).