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What We Think About When We Think About the Court—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on December 28, 2011.

What We Think About When We Think About the Court
By Linda Greenhouse ’78 MSL

Wherever I go these days, someone is bound to ask me how I think the Supreme Court will rule in the challenge to the Affordable Care Act, set for argument over three days during the last week in March. My response, that I expect the court to uphold the law, predictably evokes an expression of disbelief verging on pity for my display of such naïveté. “Won’t the justices just vote their politics?” my questioner invariably asks.

Well, actually, I don’t think so — even assuming that I knew the conservative justices’ personal views on the individual mandate. (The idea of requiring individuals to carry health insurance was, as an article last week in The American Spectator reminds us, originally cooked up in a conservative think tank. It became anathema to the Right only after the Obama administration embraced it.)

It’s not that I think that ideology is absent from the court or that it has nothing to do with how justices decide cases. But at least for most justices, most of the time, the relationship between ideology and outcome is oblique rather than straightforward. Ideology — or to use a less freighted expression, world view — is there, but it is not the only thing there. As two political scientists, James L. Gibson and Gregory A. Caldeira, put it in a recent article, “judging at the level of the Supreme Court involves a complicated blend of legal, policy, and ideological considerations.”

Professor Gibson, a leading scholar of judicial behavior, expressed the idea this way in an earlier article: “Judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do.” By “feasible,” Professor Gibson means something deeper than “what they can get away with.” He means that judges operate within the public and private norms of the judicial role and of their own institution, constrained by the need to safeguard institutional legitimacy and by “the sociopolitical environment within which the institution is located.”

To the list of constraints, I would add the text of the constitutional provision or the statute at issue, along with the relevant precedents that guide the analysis. For example, in November, when Judge Laurence Silberman, one of the country’s most prominent conservative judges, rejected a challenge to the Affordable Care Act in a majority opinion for the United States Court of Appeals for the District of Columbia Circuit, he concluded (with regret, for all I know) that the challenge had to fail because the plaintiffs “cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent.”

My purpose in this column is not to analyze the health-care arguments or elaborate on my prediction for the outcome. Rather, it’s to reflect on the puzzle of how people view the Supreme Court and what they expect from it. The combination of a superfecta of blockbuster cases this term — in addition to the health-care case, there is the Arizona immigration case, a major redistricting case from Texas and, sitting in the court’s in-basket, a new challenge to affirmative action in university admissions — and the Republican presidential candidates’ ritualized attacks on the judiciary has raised the Supreme Court’s salience to a level not seen since the two weeks in December 11 years ago when Bush v. Gore held the country in thrall.

And Bush v. Gore is, in fact, part of the puzzle. The dire prediction offered by Justice John Paul Stevens in his dissenting opinion that the real loser in the case would prove to be “the Nation’s confidence in the judge as an impartial guardian of the rule of law” did not come true. The decision did no measurable long-term damage to the court’s public standing, a fact that, while it surprises those who were infuriated by the court’s intervention in the election, did not surprise the social scientists who track public attitudes toward various government and private institutions.

Although the court’s public approval rating has dropped recently to 46 percent, as measured by the Gallup Poll (down from 61 percent just two years ago), that remains a high number at a time of mounting public disenchantment with government in general. Congress ended the year with an 11 percent approval rating, its lowest in Gallup history.

So why is the Supreme Court largely immune, even “bulletproof,” as one political scientist, Dion Farganis, has expressed it? Intuitively, one answer might be what scholars call the “myth of legality” — the notion that deciding cases is just a matter of “applying the law to the facts at hand,” as Sonia Sotomayor repeatedly claimed during her 2009 confirmation hearing. Politicians must assume that this description of judging as a mechanical and value-free exercise must be deeply reassuring to the public, because nominees are coached to embrace it and senators publicly insist on it. In Justice Sotomayor’s case, Republican senators invoked the mechanical standard as a bulwark against the “empathy” that President Obama had said he wanted in his judicial nominees.

But the persistence of the myth of legality can’t be the explanation for the Supreme Court’s enduring public support, for the reason that most people apparently recognize it for what it is, a myth. In a survey that Professors Gibson and Caldeira conducted for their recent article, 65 percent of the respondents agreed with the statement that “Supreme Court judges have a great deal of leeway in their decisions, even when they claim to be ‘interpreting’ the Constitution.” Most people also agreed with this statement: “Judges always say that their decisions are based on law and the Constitution, but in many cases, judges are really basing their decisions on their own personal beliefs.” Thus, the authors conclude: “It appears that most Americans reject the mechanical jurisprudence model. Most believe that judges have discretion and that judges make discretionary decisions on the basis of ideology and values.”

Whether that public understanding is best described as cynical or refreshingly realistic, it seems inconsistent with the broad support the Supreme Court enjoys. If the justices are just “politicians in robes,” why should the court be regarded as different from, say, the House Republican caucus?

It turns out that most Americans reject the “politicians in robes” image. Yes, people recognize that judges exercise discretion. But they see it as what Professors Gibson and Caldeira call “principled discretion,” as opposed to the “self-interested decision-making” the public ascribes to politicians. The authors conclude: “It appears that this conception of principled but discretionary judicial policymaking renders realistic views compatible with judicial legitimacy.”

In other words, the public is capable of holding two views at the same time: one, that judges don’t simply paint by numbers, but do bring their own values and views to bear and two, it is not simply the fact of discretion, but the way judges exercise it, that sustains the legitimacy of the judicial enterprise. Politicians who condescend to the public with their formulaic invocation of the myth of legality do us all, including the courts they claim to protect, a disservice.

And what about the people I encounter who assume the justices will simply vote their politics in the health care case? Well, institutional support for the court is broad but certainly not universal. It is diffuse but not necessarily specific. If most people have accepted Justice Antonin Scalia’s advice to “get over” Bush v. Gore, a sizeable number remain unreconciled to last year’s corporate speech decision, Citizens United. The way people think about the court is complicated and filled with contradictions; that’s what makes this subject so rich.

To get back to the justices: recognizing that ordinary people are capable of complex thinking, why not give the justices credit for the same ability? Naturally they care about outcomes. How could they not? But they have to care about a lot else as well. In every decision they confront, they have to find a way to reconcile the present with the past, understanding that what they do today shapes the future. In other words, they are capable of holding many thoughts simultaneously.

At least, looking ahead to what could be a momentous 2012, I hope so.