This morning's plenary considered "Regime Politics and the Roberts Court." Moderated by Stephen Griffin (Tulane), the panel featured Pamela Karlan (Stanford), Thomas Keck (Syracuse), and Neil Siegel (Duke). As Griffin explained, the aim of "regime politics" analyses in political science is to explain constitutional doctrine by reference to the governing partisan coalition of which the Court may be a part. In this regard, such analyses seek to situate the Court in the broader context of American politics, political regimes, and governing coalitions. While Justices may reflect the Presidents that nominated them, and the time at which they were nominated, they may also respond to broader political changes and social movements.
Thomas Keck noted that regime politics may produce certain predictions about how a given Court will act. For instance, if one views the Court as part of a governing partisan coalition, one might expect the Court to support the governing coalition's policies. According to Keck, over half of the Roberts Court's decisions the Court endorsed the position urged by the Office of the Solicitor General in a brief to the Court, and an even greater percentage of the Court's decisions could be characterized as "wins" for the policy positions that the Bush Administration favors, explicitly or otherwise. Here Keck included cases in which the Court reached results that he believes the Administration favored even if no SG brief was filed, or even if an SG brief was filed (perhaps reluctantly, due to institutional constraints or other considerations) on the other side.
Keck then considered ways in which the Court could actively assist a presidential administration by invalidating or limiting unfavorable policies. Such actions are important because there may be policies "left over" from prior administrations or adopted over the administration's opposition. Therefore Court intervention can assist the administration, particularly if the administration is seeking to advance a particularly controversial policy position or would like the Court's acquiescence in scaling back the interpretation of existing regulatory statutes.
Applying this analysis to the Roberts Court, Keck concludes that the story of the Roberts Court, thus far, is "the active deployment of judicial power" in support of the policy agenda of the Republican Party in a large proportion of its cases. Without seeing how Keck characterized the Roberts Court's various decisions it is difficult to evaluate his overall thesis. But I do quarrel with some of the examples he provided. Keck cited Rapanos v. United States, for instance, as a "win" for the Bush Administration because the Court adopted a narrow interpretation of a "liberal" regulatory statute, the Clean Water Act. In effect, Keck argued, the Court did the executive's dirty work by restricting the CWA's reach as, he explained, the Bush Administration would have wanted. The problem with this characterization, however, is the Bush Administration actively resisted the adoption of a narrowed interpretation of the CWA's reach and, despite a prior narrowing construction in SWANCC v. Corps of Engineers, had refused to adopt a narrowed reading administratively. To the contrary, the Administration continued to enforce the CWA fairly aggressively, and acted as if the SWANCC decision had imposed no real constraints on the government's regulatory authority. So, if Rapanos is a "win" for the governing coalition, it is an odd sort of win -- a victory for opponents of the broad federal regulatory authority, perhaps, but not much of a win for the Bush Administration. Furthermore, there are a large number of cases in which the Administration takes a given position because it is "the Administration," and any Administration would advance the same position, making it problematic to characterize some of these cases as "wins" for any given regime.
Neil Seigel opened by noting that it is possible to identify political regimes with "constitutional components." That is to say that political regimes are organized, in part, around a given conception of the role of the courts and constitutional law. Thus as regimes change, one consequence can be a change in judge-made constitutional law, as one regime's conception of the Constitution is supplanted by another.
As an illustration, Seigel pointed to Supreme Court doctrine on the use of racial considerations in education. Whereas it was once clear, and largely uncontested, that the Equal Protection Clause allowed local school boards to consider race in pupil assignments, the Roberts Court has now ruled otherwise in the Parents Involved. This change, Seigel suggested, constitutes a "180 degree" turn in the Court's Equal Protection jurisprudence, is best explained politically. It was the consequence of a political movement, rather than mere lawyering and legal advocacy.
While some changes in constitutional law doctrine in political terms, and many scholars analyze court behavior in this fashion, Seigel noted that the Court does not describe what it does in such terms. Rather, judges and justices characterize judicial decision-making as akin to umpiring an athletic contest. As then-Judge Roberts explained at his confirmation hearing, his job was to call balls and strikes, not impose his preferred rules on the game. Some scholars believe such rhetoric is necessary for the Court's legitimacy. That is, the public accepts the Court's authority because it views the Court as a largely apolitical actor. Seigel questioned this account, noting that public conceptions of the Court and its role has changed over time, and it is not clear that the public "can't handle the truth" about the Court as an active participant in American politics.
Pam Karlan opened noting that it is a little odd to be considering regime politics in the Roberts Court because we "are way too early in the process." She nonetheless noted that one can already discern a gap between what the Court (or at least the Chief Justice) says and what it does. While Chief Justice Roberts has expressed a willingness for the Court to grant more cases its docket remains small, and while Roberts has often stated a desire to have more unanimous cases, there have quite a few divisive 5-4 decisions (at least there were last term).
In considering "regime politics" Karlan noted that it is important to define the relevant "regime." Is it a given Presidential Administration? Or an ideological political movement of which the Administration may be a part or may owe some allegiance? After all, some presidential administrations are "movement" presidencies (Reagan, G.W. Bush), while others are not (G.H.W.Bush). How, then, should one evaluate the Court's role in regime politics?
In the balance of her remarks, Karlan considered how the Court chooses between facial and as-applied challenges and the consequences of such choices.
In Gonzales v. Carhart, for instance, the Court upheld the federal Partial-Birth Abortion Act against a facial challenge, despite the lack of a health exception. According to the Court, any women for whom the prohibition posed a health threat could challenge the statute "as-applied" to them. Yet, as Karlan noted (citing Justice Ginsburg's dissent) a statute either has a health exception or it does not, and can (and should) be evaluated on that basis.
Somewhat similarly, in Crawford, the Indiana Voter ID case, the Court's plurality rejected a facial challenge to the state statute, but held that future as-applied challenges could be considered. This is not much help to the potentially disenfranchised voters, Karlan noted, as it would be particularly difficult for any potentially disenfranchised voter to challenge the statute until after the relevant election. Not only are such challenges difficult to bring, in claose electoral contests they cannot be brought without an understanding of the partisan political consequences of such litigation.
Through these examples, Karlan sought to suggest that decisions that appear quite modest or minimal on the surface can actually be quite significant, and have far-reaching consequences. Forcing litigants to file as-applied challenges may effectively insulate problematic statutes from meaningful judicial review. Yet as Columbia's Michael Dorf noted during the Q&A, it is possible to bring anticipatory as-applied challenges that can address some of the concerns Karlan raised.
[As an aside, Karlan made the surprising claim that she could not recall of a recent instance in which a retiring justice has been replaced by justice to his or her left. The most obvious example here is Justice White, who was replaced by Justice Ginsburg. It is also relevant that given the role of precedent and inertia in judicial doctrine, even the replacement of a justice to the "right" of his or her predecessor may not produce a rightward shift in the Court's jurisprudence -- a point supported empirically by Lee Epstein's data presented on the first panel.]
Related Posts (on one page):
- More AALS Mid-Year Conference Blogging:
- AALS Mid-Year Meeting: Federalism and the Roberts Court:
- AALS Mid-Year Meeting: Regime Politics and the Roberts Court:
- AALS Mid-Year Meeting: Executive Power:
- AALS Mid-Year Meeting: The Changing Roberts Court: