Vol. 27 No. 8 (October 2017) pp. 131-132IDEOLOGY IN THE SUPREME COURT, by Lawrence Baum. Princeton, NJ: Princeton University Press, 2017. 261pp. Hardcover $35.00. ISBN: 978-0691175522.
Reviewed by Thomas G. Hansford, University of California, Merced. Email: thansford@ucmerced.edu.
To say that the influence of the justices’ ideological leanings on the Supreme Court’s decisions is well documented is to risk understatement. In fact, the connection between ideology and behavior on the Court is so established that its status has changed from the subject of empirical examination to that of being a central assumption undergirding almost all theorizing about the Court. How, though, does a justice’s ideological position translate into a preferred position in a Court case? What makes a position in a given legal issue area liberal or conservative? Has the mapping of issue positions onto the canonical left-right ideological dimension remained consistent at the Court over time? These are the types of question that motivate Lawrence Baum’s excellent and provocative new book, IDEOLOGY IN THE SUPREME COURT.
Baum shows that across several key issue areas, the apparent definitions of liberal and conservative outcomes have changed over the past several decades. For example, he demonstrates that while pro-freedom of expression votes were cast by liberal justices from the 1950s through 1980s, by the mid-1990s this type of vote was increasingly being cast by the more conservative justices. Using Baum’s language, the “polarity” of this issue area has switched. Other issue areas, including criminal justice and Takings Clause cases, are also shown to have experienced changes in ideological polarity during the Twentieth Century. These convincing results alone are important reminders that judicial scholars need to continue updating their understandings of the connection between ideology and specific issue positions.
Baum, however, also seeks to understand why these changes occur and what this tells us about the true content of judicial ideology. He argues that these shifts in polarity can occur when there are changes in the identities of the groups who are helped or hurt by the abstract legal principle in question. To return to the freedom of expression example, liberal justices prefer the expression of liberal positions. Thus when claimants from groups that are sympathetically viewed by liberals came forward in the 1940s through 1970s, the liberal justices were the ones casting pro-expression votes. When conservative speakers and corporations began to press free expression claims in subsequent decades, liberal justices retreated from their pro-expression positions, only to be replaced by conservative justices.
From this type of pattern, Baum concludes that the ideological polarity of an issue area is not entirely based on constrained, first-principles reasoning. Instead, polarity seems to sometimes be driven by affect towards the groups hurt or helped by an issue position. Interestingly, this would place the justices in Converse’s (1964) third “level of conceptualization,” in which people do not hold abstract ideological positions but instead think in terms of how policies impact groups. If Baum is right, then this is a remarkable and sobering [*132] assessment of the justices’ belief systems. It also suggests that the justices often do not have sincere ideologically-motivated preferences over abstract legal rules. Legal rules are mere instruments by which to assist groups that are favored and impair groups that are not.
How do social groups get linked with legal issue positions at the Court? Baum provides fairly extensive discussions of how these linkages originate and evolve in the context of the specific issue areas he covers. While he provides tentative answers to this question, they vary by issue area and it is not particularly clear what the general process of group-position-ideological polarity linkage looks like. Sometimes it seems to be a function of genuine, organic changes to the Court’s agenda that might flow from shifts in how political elites view the impact of various policies on relevant social groups (which suggests there is a largely ignored causal pathway between the political environment and Supreme Court decision making - instead of acting as a constraint on the justices and their choices, political elites may influence the Court by shaping a common understanding of which groups benefit from which policies). Other times, for example, there is a concerted legal mobilization effort by fairly narrow interests, such as in the area of property rights and the Takings Clause. Baum also hints that the Court may have agency here and be the initiator of some changes to issue polarity. In the area of criminal justice, for example, by connecting the expansion of defendants’ rights with race and civil rights the Court may have contributed to the modern understanding of the ideological polarity of this issue area.
It is also not clear how much weight the justices put on whether a position generally helps a favored group versus helps this group in a particular case. For example, if a pro-freedom of expression position generally helps groups that a liberal justice favors, does this then mean that she will sometimes hold her nose and support conservative expression? Or, is there no “shadow of the future” or consistency constraint and thus every vote is simply determined by affect towards the groups in the case at hand?
To be clear, these last few comments and questions are not criticisms of IDEOLOGY IN THE SUPREME COURT. Rather, these are simply indicators of the limits or boundaries of the book and speculations as to what further work in this area might address. Indeed, one of the real strengths of Baum’s book is that it will surely serve to provoke researchers into more closely considering exactly what judicial ideology means at the Court, where it comes from, how it is expressed in Court cases, how it evolves, and how it differs (if at all) from the ideology of other elites. I strongly recommend this book for all students of the Supreme Court.
REFERENCES:
Converse, Philip E. 1964. “The Nature of Belief Systems in Mass Publics.” In David E. Apter,
ed., IDEOLOGY AND DISCONTENT, pp. 206-261. New York: Free Press.
Copyright 2017 by author, Thomas G. Hansford.
