The current iteration of the supreme court has found itself tenuously positioned in today’s political discourse. Following Donald Trump’s anomalous three supreme court appointments in a single term, Chief Justice Roberts is presiding over the most conservative bench of his tenure.[i] It is not the first time the bench has been so lopsided. Yet, the departure from senatorial norms which caused the split, the growing disconnect between the left and rights’ jurisprudence, and the court’s increasing comfort in the political arena have led many to brand the court as a broken, anti-democratic institution.[ii] Furthermore, Trump’s three appointees are not just any justices—rather than selecting his choices from a list generated in-house or by the American Bar Association (ABA), Trump's appointees came curated by the Federalist Society and Heritage Foundation, two pillars of the conservative law movement. Subsequent Democrat outrage has framed substantial court reform as necessary constitutional maintenance. The resulting discourse around prominent proposals such as court expansion and term limits tends to focus on balancing the Court’s current partisanship, limiting a single administration’s long-term judicial influence, and generally democratizing the institution.[iii] However important these goals may be, though, they overlook the source of the problem.
No matter the number of justices appointed by a president or the duration for which those justices have served, throughout its history, the Supreme Court’s bench has seldom been a mirror to D.C.’s divides or a means to realize a specific policy goal. Yet today, it is frequently both, perhaps best exemplified by Trump’s recent nomination of Amy Coney Barrett. Observers immediately identified the choice as an explicit effort by conservatives to overturn Roe v. Wade and undo federal abortion protections, and following the oral arguments in Dobbs v. Jackson, the effort looks likely to succeed.[iv] The partisanship which permeated her nomination is nothing new,[v] but its translation to politically-aligned outcomes reflect a novel dynamic. The dynamic did not originate in any of the branches of government or party competition. Rather, the court’s contemporary partisanship is the result of ideological competition within the legal field itself.
More specifically, it is a result of competition within what Johns Hopkins Professor Steve Teles calls the legal support structure, the networks of organizations and actors which dictate the “supply” side (those who bring cases and generate legal ideas and strategies) as opposed to the “demand” side (courts) of the legal system.[vi] According to Teles, there are several reasons why the law’s support structures have such an outsize impact on judicial outcomes. Perhaps most significantly, courts have little agenda control. For example, developments in public interest law were preceded by a rise in public interest lawyers because courts can only act on issues brought before them. Supply-side actors who are able to mobilize enough cases to reach the Supreme Court and skilled enough at litigation to win them, therefore, have significant influence.
Additionally, courts are bound to legal ideas with a baseline legitimacy, both in the cases, they hear and the decisions they issue. The more authoritative the support for an idea is, the faster a court is likely to endorse it.[vii] An ideology’s dominance at prominent institutions such as elite law schools and the ABA, therefore, has a substantial impact on judicial outcomes, and these institutions are hardly democratic. Rather, they’re hierarchical, self-regulatory, and maintain monopolies in their fields, meaning the support structure is in charge of itself and resistant to change.[viii] In fact, the supply side can dictate the demand side. Even ignoring the Federalist Society’s influence on Trump’s court appointments, the support structure generally impacts the pool of candidates up for a judgeship through its role in establishing legal conventions. This, along with the other attributes which underpin the law’s supply-demand dynamic, means the nature of the Supreme Court’s makeup and output is bound to reflect the legal support structure’s dominant regimes, and by extension, changes in the former follow changes in the latter.
The currently-perceived partisanship of the court is the result of an especially seismic supply-side shift: the conservative law movement’s ascent as a challenger to the liberal law regime. The liberal regime is characterized by the moral dominance of civil rights, the legendary Warren Court’s landmark decisions (Brown v. Board of Ed., Gideon v. Wainwright, Miranda v. Arizona), and the defense of its legacy in the 1970s against a rising tide of conservatism. However, just as neoliberalism was beginning to brew as a counter to Keynesianism in the succeeding decade, so too brewed an ideological rebellion against the tenants of the liberal law network (LLN): Law and Economics, a new jurisprudence offering a chance to dis-entrench liberal hegemony.[ix] The opportunity was not overlooked. With Law and Economics as an initial foundation, intellectual, social, and networking entrepreneurs harnessed abundant funding to legitimize new modes of opposition to the LLN. Soon, organizations such as the Federalist Society formed, bringing these disparate actors together with politics interests and parallel legal concepts like originalism. The result: the conservative law network (CLN), a network of actors distinct from the LLN yet prominent enough to influence the law’s supply-side with unified intent, providing demand-side legal options for, and conforming sympathetic demand-side actors to, conservative political interests.[x]
The CLN has only become more profuse, legitimate, and influential from the late 1980s to today. The subsequent rise in competition between the CLN and LLN has enabled the political branches to confer their own divisions onto the judiciary, just as it has enabled divisions in the judiciary to polarize along partisan lines. The subsequent “stench,” as Justice Sotomayor has put it, “in the public perception that the Constitution and its reading are just political acts”[xi] does not have an easy remedy. If one thing, however, is clear, it’s the necessity of acknowledging the limits of politically-rooted reforms in today’s partisan, special interest-inculcated legal landscape. To that end, phrases like “pack the courts” are empty promises, band-aids on a deeply foundational wound. Change is certainly possible, but not so simple.
[i] Supremecourt.org, “Justices 1789 to Present.”
[ii] Marcus, “The Supreme Court’s Crisis of Legitimacy.”
[iii] Adams and al., “Presidential Commission on the Supreme Court of the United States Draft Final Report.”
[iv] Grossman, “Dobbs v. Jackson Women’s Health Organization: The Supreme Court Is No Safe Haven for Abortion Rights.”
[v] Adams and al., “Presidential Commission on the Supreme Court of the United States Draft Final Report.”
[vi] Teles, The Rise of the Conservative Legal Movement.
[vii] Balkin, “Bush v. Gore and the Boundary Between Law and Politics.”
[viii] Teles, The Rise of the Conservative Legal Movement.
[ix] Ibid.
[x] Ibid.
[xi] Dobbs v. Jackson Oral Arguments