Party Loyalty as a Legitimate Factor in Constitutional Law Cases or Legal Realism run Amuck?

Party Loyalty as a Legitimate Factor in Constitutional Law Cases or Legal Realism run Amuck? Author Disclaimer: The ideas expressed below may at first blush be deemed off the wall crazy by many of our readers. I would sincerely ask that before you summarily dismiss the notion that party loyalty might be an appropriate modality of constitutional interpretation, you keep an open mind. Especially for legal realists, this notion is a good test for the logical outer boundaries of our school of thought. ************************************** In a provocative new essay forthcoming in Law and Social Inquiry titled "Partisan Teamsmanship and American Constitutionalism," Professor Gregory Elinson suggests that, given the importance of political parties to our representative democracy, perhaps party loyalty is a legitimate factor for Supreme Court justices to take into account when deciding constitutional law cases. The abstract concludes that "so long as parties remain institutional vehicles for vindicating core beliefs and principles held by the public, partisan teamsmanship by judges may be less dangerous to our constitutional system than contemporary critics of the Supreme Court presume." Is this legal realism run amuck or an insightful perspective on how the Court has historically done its job and should continue to do so in the future? The essay begins by recognizing what all of us should easily accept: Under Chief Justice John Roberts’ stewardship, the Court’s Republican-appointed supermajority has consistently delivered high profile victories to Republican interests across a range of policy areas, including election law, administrative law, and major social issues like abortion, affirmative action, and the rights of transgender individuals. The Roberts Court’s ties to the Republican Party are further evident in the justices’ prior professional experience. Every member of the Court’s conservative majority has been active in the Federalist Society, the organization that has long anchored the conservative legal movement. And with the exception of Justice Amy Coney Barrett, the Republican appointees who voted to hold, in Dobbs, that the Fourteenth Amendment does not confer an individual right to an elective abortion previously held executive branch positions under Republican presidents. Three—Justice Barrett, along with Brett Kavanaugh and the Chief Justice—helped to litigate Bush v. Gore. And two—Justices Samuel Alito and Clarence Thomas—have maintained close personal relationships with prominent Republican donors and activists while on the bench. Elinson then points out that most legal scholars along with the public at large, while recognizing that ideology and politics will affect legal decisions, also believe that party loyalty should not be the basis of or even relevant to the Court's constitutional law decisions. It is that assumption that Elinson challenges in this essay. His argument centers mostly around two crucial historical periods in our constitutional history: Reconstruction and The New Deal. Relying on books by Mark Graber and Laura Kalman, Elinson argues that party loyalty motivated how the Supreme Court was staffed during those eras and how the Court acted at those critical moments. It is common ground that the Republicans in the 1860's and 1870’s and the Democrats in the 1930's and 1940's, both in the Executive Branch and on the Court, were motivated strongly by party politics (just as the Roberts Court is today). Elinson argues that, "entrepreneurial political actors understood that determining what the Constitution meant and how it would function in subsequent generations was too important to be left to their party rivals to help decide. Accordingly, members of each era’s dominant party sought to make constitutional decisions with their partisan consequences well in view." Based on this history, Elinson makes the following claim: The case for constitutional law qua law is that it is supposed to prevent one party (or faction or social group) from seizing the reins of government to revise the Constitution to its own benefit. But if our constitutional tradition involves the opposite, particularly during those times in our history where the political stakes were highest, it is important to revisit what we think we know about the relationship between partisan teamsmanship and constitutionalism. I am a hard-core legal realist, and as readers of this blog know, firmly believe that ideology, values, and experiences drive the Court's constitutional law decisions, not the justices' usual nods to text, history, and precedent. But I have also always argued that party loyalty and partisanship are subsets of and not the same as ideology writ large. In modern times, for example, Justices Blackmun, Souter, Kennedy, and White often voted in ways inconsistent with their party's preferences, and in Kennedy's case, that disconnect kept abortion rights and affirmative action alive much longer than the GOP would have liked. Throughout American history, as I am sure Elinson would concede, there have been numerous justices who have not placed party over ideology. On the other hand, Elinson persuasively demonstrates that party loyalty has been a driving force at the Court during important constitutional moments (as it is today). Let us assume that Elinson's descriptive account is correct. Should party loyalty be recognized as an appropriate modality of constitutional interpretation, along with text, history, precedent, morality, and consequences? That is the interesting question raised by his essay. The most persuasive argument for this counter-intuitive idea is that, if in fact at important times in our constitutional history party loyalty was a motivating factor for the justices' decisions, as it is today, then as a matter of transparency the justices should "come clean" and discuss partisanship in their decisions. For example, the Roberts Court's dismantling of the Voting Rights Act has been motivated in large part by the justices' desire to make it easier for the GOP to win elections. Does anyone think that if people of color voted overwhelmingly for the GOP those decisions would have come out the same way? The legally dubious cases from Shelby County to Callais are best understood as party loyalty decisions, so wouldn't it be refreshing to hear the GOP justices explain why they think it is so important for their party to amass as much power as possible rather than the borderline-frivolous "legal" arguments actually set forth in those opinions? One response to that suggestion may be that it is not the Court's job to further the interests of political parties but to interpret the Constitution as honestly as possible. To the extent that certain Supreme Courts in particular eras were motivated by party loyalty, the public at- large and legal scholars should not affirm that practice but condemn it in the hope that the justices will listen and act better. Furthermore, even if party loyalty inevitably affects the justices' decisions, they should work hard to be self-aware enough to know that and try to avoid partisan temptations as much as humanly possible. That approach would certainly be the one most people would prefer. But interpreting imprecise constitutional text and contested historical accounts is a messy business because those modalities underdetermine constitutional litigation. What the originalists call constitutional construction requires normative judgments that cannot be gleaned from traditional legal sources. Some examples will clarify this point. There have been four Supreme Court decisions affirming gay rights in our country's history, and all four were written by Justice Anthony Kennedy, a life-long Republican appointed by Ronald Reagan. One might wonder: why? The most persuasive answer is that Kennedy had a close relationship with a prominent lawyer and Dean of a law school who was a closeted gay man. Kennedy saw firsthand the indignity and pain the closet caused his close friend. That perspective affected how Kennedy viewed the Constitution's open-ended due process and equal protection clauses. Similarly, Justice Antonin Scalia loved guns and hunting, Justice Ruth Bader Ginsburg was strongly devoted to gender equality, and Justice Thurgood Marshall's most important value was fighting racial discrimination. Those justices voted consistently with their prior political and personal preferences. I have always believed that they should have explained their constitutional visions in the context of their experiences and values. True stories are more powerful and persuasive than dubious interpretations of text and history. If party loyalty plays a large role in the justices' reflections, either on or below the surface, then arguably the justices should justify their decisions with authentic reasons why that is so. On the other hand, legal scholars and the justices themselves (especially when they are at their Senate confirmation hearings) say the goal should be to eliminate personal values from the justices' decisions as much as possible. While the justices will never be able to completely eliminate the impact of their values and backgrounds, on this account their task should be to do so as much as they can. It ought to be easier to consciously discount party politics than it is to distance oneself from one's own conception of, say, "equal protection" or what counts as an "unreasonable search." So even if ideology inevitably affects judicial decision making to some extent, party loyalty shouldn't and mostly wouldn't, on this standard view. Elinson might respond, however, that Republicans in 1870 and Democrats in 1936 knew that the political goals they held most dear were only possible through partisan victories on and off the Court. Thus one cannot separate strengthening one's political party through Court decisions from specific constitutional visions such as those associated with the goals of the Reconstruction Amendments (a county with greater racial equality) and the attempt to handle the Great Depression by the successful implementation of the New Deal (more extensive government regulation of the private sector). Elinson's thesis that party loyalty might be a legitimate factor in constitutional cases will likely be dismissed summarily by most lawyers, scholars, and judges. But he raises serious questions, especially for legal realists. In that regard, Professor Elinson has challenged widely held assumptions about how the Supreme Court has and should decide constitutional questions. I strongly recommend the essay. Eric Segall