The Lessons of Kagan’s Liberalism

Mark Tushnet’s typically excellent new book about the Roberts Court represents an epochal historical moment — I believe it’s the first time this blog has been cited in book form by a major scholar. And I think this is one I’m happy to be the first even if (as I’ll get to in a second) I think Paul, like me, was wrong on one key point.

I have to concede, though, that I was wrong about Elena Kagan’s ideological bona fides. Part of this was not putting enough emphasis on individual clues. But the bigger story is that being part of the “Democratic team” conveys a lot more information than it did 40 years ago, when it could mean you were getting (solid liberal) Abe Fortas or (awful on everything but national power and civil rights) Byron White.

As I’ve said before, Mark Graber’s recent paper on elite polarization and the Court is the best account of this shift so far, and I recommend it to anyone interested in that kind of thing.  A couple additional points:

• One of the strongest parts of the paper is the assessment of the limitations of alternate explanations explaining patters of Supreme Court decision-making.  As more scholars and observers begin to understand that the “counter-majoritarian difficulty” isn’t a very useful framework for understanding the Court, I think there’s been a tendency to overstate the importance of factors like public opinion. (“The Supreme Court follows the election returns” has become almost as much of an overused cliche than the Tocqueville line about how everything becomes a legal question, which is also largely wrong.)  Sure, some decisions (like Casey) seem to land in the middle of public opinion — but there are too many exceptions for this to approach a rule.  (In additions to the exceptions cited by Graber, two words: Citizens United.)  The real mechanism that has made the Court look centrist is a combination of decision rules that empower the median member and the tendency of American political coalitions to be heterogeneous.  The first factor still obtains, but the latter has largely disappeared.

• As I mention in the Prospect piece, I do have one quibble with the article: namely, Graber’s implicit assumption that elite polarization has been largely symmetrical.  Both elite party factions have become more coherent, but the Republican elite consensus has coalesced much further to the right than the Democratic one has to the left.  Overruling the Court’s “sovereign immunity” decisions would be an important change, but hardly one on the scale of holding that national health care legislation exceeded Congress’s Article I powers (which most Republican elites now believe to be the correct position.)  I’m not sure what the Democratic equivalent of the federalism holdings of NFIB v. Sebelius or Shelby County would be — a right to universal health care and a minimum income?  That’s not going to happen.  A Court with five Kagans and Sotomayors almost certainly wouldn’t hold the death penalty to categorically unconstitutional (although it would be easier to make a plausible argument along those lines than to, say, make a plausible argument that the “equal sovereignty of the states” restricts the authority to address racial discrimination in voting conferred by the 15th Amendment.)   Apart from a national right to same-sex marriage — and note that Ginsburg and Kagan were reluctant to go too far too fast even there — any change from a Democratic-controlled Court is likely to be incremental, with the biggest effect preserving Warren Court precedents rather than continuing to chip away at them.

The stakes for control of the Supreme Court have become higher, but the transformative effects of a Court controlled by five Alito-like conservatives would be considerably greater than a Court controlled by five Kagan-like liberals. As with most things in American politics, the downside is much worse than the potential rewards.