Book Reviews, Institutions

What Politicized the Supreme Court?

June 18, 2021

Amid swirling controversy over President Trump’s Supreme Court appointments and the Biden Administration’s judicial commission, Ilya Shapiro’s Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court has come at the perfect time. The book is not only timely but is also one of the most comprehensive analyses of the Supreme Court’s confirmation process.

What Supreme Disorder Gets Right

The basic argument of Supreme Disorder is that the federal judiciary’s deviation from the Constitution’s original public meaning has had the effect of politicizing the courts, thus making judicial review less legitimate in the eyes of the public. This perceived illegitimacy has been compounded by rising polarization in the American electorate. The combination of a delegitimized judiciary and a polarized electorate has raised the stakes of judicial appointments, rendering the judicial nomination process a political circus, sharply at odds with the straightforward way in which judicial nominations used to operate. Shapiro holds that because political polarization and judicial illegitimacy are the root causes of our judicial nomination disorder, simple fixes (like creating term limits for Supreme Court Justices or increasing the size of the Supreme Court) will not solve the problem. The only way to fix the nomination process, Shapiro concludes, is to restore the Supreme Court’s legitimacy—that is, to make it operate more like a court and less like a political branch.

Shapiro is at his best when he transcends partisanship and dispassionately observes what is wrong with American constitutional law. Though the reader will likely have an easy time identifying Shapiro’s own political preferences (more on that below), the book often rises above simple left-right divisions. Instead of blaming Harry Reid or Mitch McConnell, Shapiro urges us to probe more deeply and consider how the politicization of the judiciary and the polarization of the electorate led Reid and McConnell to put Senate traditions aside for the sake of Supreme Court appointments.

Shapiro’s political assessments are buttressed by his insider’s perspective as the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies. Shapiro’s claims accordingly read not as a scholar’s speculations but as a practitioner’s real-world insights (this inside perspective is on display when he accurately predicts, before Justice Ginsburg’s death, that Amy Coney Barrett would be her replacement).

Even more impressively, Shapiro manages to write in a manner that is dispassionate without being uninteresting. Indeed, the text is full of his characteristic, sardonic wit. He describes Justice Kennedy’s reasoning in Obergefell, for instance, as “you take a scoop of due process and a cup of equal protection, wrap them in dignity, and away you go.” Sometimes the humor in Supreme Disorder is intrusive, unduly lightening the subject matter. But more often than not, Shapiro’s wit makes the reading more enjoyable.

The same could be said for the many miscellaneous details Shapiro offers throughout the text. These scattered bits of trivia can be distracting, but most readers will find them to be welcome additions. Shapiro’s command of the subject is so strong that even legal scholars will find new nuggets of information (for example, I did not know Mildred Lillie was the first woman to be considered for the Supreme Court). These details give readers confidence they are in good hands, under the guidance of a knowledgeable authority.

These are all strengths of the book. To be sure, some readers may find the inside politics, wit, and trivia to be distractions from learning about the Supreme Court and the confirmation process. But overall, these features add to the richness of Shapiro’s analysis.

On Judicial Restraint

A significant weakness in Supreme Disorder is that Shapiro’s ideological commitments too often get in the way of his analysis. The problem is not that Shapiro is a libertarian who believes that the best way to protect individual liberties is through an active federal judiciary. The problem, rather, is that these political commitments often lead him to wander away from his subject and into condemnations of legal liberalism (for being insufficiently attentive to economic liberties) as well as legal conservatism (for being too wedded to judicial restraint).

Even more problematic, Shapiro does not simply wander away from his thesis; he also wanders away from facts. While the book is on the surface a nonideological analysis of the Supreme Court appointment process, the attentive reader will notice an underlying political agenda, framed along the following lines: Donald Trump is bad, public perceptions of judicial illegitimacy created the right-wing populist insurgency that led to the election of Donald Trump, Chief Justice Roberts’s decision in NFIB v. Sebelius (2012) created public perceptions of judicial illegitimacy, Judge Bork’s “judicial restraint” conservatism created Chief Justice Roberts’s decision in NFIB v. Sebelius, and therefore “judicial restraint” conservatism is bad. Putting aside whether Donald Trump is in fact bad, the problem with this argument is that it rests on highly questionable premises.

Consider, for example, Shapiro’s claim that the NFIB decision fueled public perceptions of judicial illegitimacy by “undermin[ing] the trust people have that courts are impartial arbiters rather than political actors.” To be sure, NFIB was an important decision, both legally and politically. But Shapiro vastly overstates its significance to public trust in the Supreme Court, counting it as one of the “three key moments” in undermining the Court’s legitimacy (the other two he identifies are Bush v. Gore (2000) and “the early Trump era”).

There are many plausible explanations of NFIB, as a matter of both constitutional law and judicial politics, but Judge Bork’s model of judicial restraint is not one of them.

This characterization of NFIB is ideologically skewed—to the extent NFIB had a delegitimization effect, it was limited to the right side of the political spectrum. Shapiro’s ideological bias is highlighted by the fact that he overlooks the extent to which conservative Supreme Court decisions like Citizens UnitedHeller, and Hobby Lobby have undermined the public’s trust in the Supreme Court as an impartial arbiter of law. This omission is especially glaring because these Roberts Court cases likely had a greater role in delegitimizing the Supreme Court than the NFIB decision, at least for half of the country. Shapiro’s disparate treatment of these Roberts Court cases has more to do with Shapiro’s political preferences than with the public’s perception of judicial legitimacy.

Moreover, Shapiro’s emphasis on NFIB is ideologically skewed within the legal right—toward libertarian conceptions of legitimacy and against conservative ones. In fact, while Shapiro discusses NFIB extensively, he neglects the Supreme Court cases that have incited the most furious public backlashes. For example, he does not even discuss the “school prayer” decisions, which, after Brown v. Board of Education (1954), may be the Warren Court decisions that most threatened the Court’s legitimacy. And he treats Obergefell v. Hodges (2015) as a minor event—not as a decision illustrating, in Justice Alito’s words, the “irremediable corruption of our legal culture.”

Shapiro’s political agenda is also on display in how he explains Chief Justice Roberts’s NFIB reasoning. Instead of attributing Chief Justice Roberts’s strained NFIB reasoning to his effort to depoliticize the Court, as many scholars do, Shapiro attributes it to Judge Bork’s theory of judicial restraint: “John Roberts’s vote in the Obamacare case was a fruit of that poisonous tree.” This is a highly questionable explanation, particularly given that Roberts has been willing to exercise muscular judicial authority on other high-profile issues, such as limiting President Trump’s authority in the census and DACA cases. There are many plausible explanations of NFIB, as a matter of both constitutional law and judicial politics, but Judge Bork’s model of judicial restraint is not one of them.

Shapiro’s disapproval of judicial restraint also comes through in his chapter on Bork. Shapiro describes Bork as “gruff,” “turgid,” and “standoffish,” even complaining of Bork’s “irascible” beard and mannerisms. Shapiro is equally harsh in describing Bork’s originalism and judicial philosophy: “Bork was inexcusably wrong in emphasizing judicial restraint,” a view that, in Shapiro’s view, “got the Madisonian vision wrong” and “left [Bork] open to caricature as being unfeeling in the face of injustice.” He likewise critiques Bork’s narrow view of the Fourteenth Amendment and the Ninth Amendment, and even suggests some sympathy with the liberal view that Bork’s “dedication to the Founders ‘original intent’” was “overly rigid and outside the mainstream,” because this originalism would mean challenging the “now-sacred Warren Court rulings.”

Shapiro’s own political preferences similarly animate his understanding of the 2016 election. Without reservation or qualification, he claims “[t]he Trump campaign itself was surprised to have won.” Shapiro provides no footnote for this questionable claim, but he seems to have accepted the (likely false) assertion made in Michael Wolff’s Fire and Fury: Inside the Trump White House.

Nor does Shapiro provide support for his claim that President Trump won the 2016 election only because of the Supreme Court—a claim he makes on two separate occasions in the book. Indeed, Shapiro claims that Scalia’s death “effectively provided the margin of Donald Trump’s victory.” And if this wasn’t clear enough, Shapiro puts the point even more bluntly later in the book: President Trump “wouldn’t have won had it not been for the Scalia vacancy.” While the Supreme Court was indisputably a significant factor in the 2016 election, it is far from clear that it was the “but for” cause of Donald Trump’s victoryIt is difficult to reconcile this claim with the fact that Trump won the primaries by focusing on immigration and trade—two issues with a minimal relationship to the Supreme Court. And even after Scalia’s death, Republican voters placed the economy, terrorism, and immigration as their top three priorities. As Shapiro himself acknowledged just six months before the election, “[j]udicial appointments are hardly among the top concerns of the median Trump voter.”

So why—if Bork is not responsible for NFIB, if NFIB is not responsible for judicial illegitimacy, and if judicial illegitimacy is not responsible for President Trump—does Shapiro relentlessly push these points throughout Supreme Disorder? Because this narrative points to a particular solution to the disorder surrounding our confirmation process: If judicial restraint is what led to judicial illegitimacy, and in turn to Trumpism, the way back to legitimacy, and thus back to establishment conservatism, is judicial engagement. That is, if Chief Justice Roberts begat Trump (a point that Shapiro has been pushing for the last five years), the way back to normalcy is for an anti-Roberts figure to become the face of legal conservatism. And that is where Neil Gorsuch comes into the picture.

But Bostock

While Shapiro is critical of President Trump, he approves of his performance in one area, judicial nominations, which, in Shapiro’s opinion, have “been Trump’s biggest success.” But he does not actually give Trump too much credit here, because the success lies in the fact that Trump “let the White House Counsel’s office run the show”—meaning that the judicial nomination process was under the control of “‘Fed Soc’ members who understood the need for solid judges.”

“Solid judges,” in Shapiro’s view, mean those like Neil Gorsuch, for whom Shapiro devotes the most glowing language in the book. Gorsuch, Shapiro writes, is “like Scalia in the ways that made Scalia legendary, but unlike him on the measures that prevented even the great Nino from having even more of an impact.” In his first few years on the Court, Justice Gorsuch has “establish[ed] himself as an evocative writer and libertarian darling”—not “what you’d get from a ‘judicial restraint’ conservative.”

Shapiro thus aptly titles the chapter on the Gorsuch confirmation hearings “But Gorsuch”—which was the rallying cry for elite conservatives and libertarians who (at least after the 2016 election) were willing to stomach Trump’s populism in exchange for Federalist Society authority over federal judgeships. To his credit, Shapiro was ahead of the curve, recognizing even before the election that if Trump became president he would likely nominate establishment types as “an attempt to placate the conservative legal elite.” That is certainly what happened with Neil Gorsuch.

Those readers not on the “But Gorsuch” team, however, may find Shapiro’s encomium to Gorsuch more ironic than informative, particularly in light of Justice Gorsuch’s purportedly textualist decision in Bostock v. Clayton County (2020), extending Title VII to include discrimination on the basis of sexual orientation. As Shapiro predicted, the conservative legal elite got its pick in Neil Gorsuch. And that pick did precisely what some of us on the right side of the spectrum predicted. So when Shapiro calls the judicial outsourcing to the Federalist Society “Trump’s biggest success,” some readers will surely think: “But Bostock . . . ”

Polarization, Federalism, and Reform

At the end of the book, Shapiro considers several proposals to reform the Court. He finds all of these proposals defective, because they will not address the root cause of the Court’s dysfunction—the loss of legitimacy in the Court’s operations, which is compounded by the increased polarization of the electorate. One way out of this situation, Shapiro concludes, is for federalism to work according to the original constitutional scheme: “There’s no more reason that there needs to be a one-size-fits-all health care system,” Shapiro writes, “than that zoning laws must be uniform in every city.”

This is an important point, and one with which I strongly agree, but Shapiro overlooks that the same could be said for family, education, and anti-discrimination law. More generally, Shapiro ignores the extent to which the federal judiciary’s expansive enforcement of the Fourteenth Amendment threatens the Constitution’s federalist structure, and how the most invasive federal actions come not from Congress or even the administrative state, but from the judiciary.

There is a good reason that Shapiro ignores this point: Strict federalism constraints for Congress but not for the judiciary would have the effect of creating conservatism on economic matters but not on cultural issues—a system largely in line with libertarian politics. That may make the Supreme Court more legitimate to the people at Cato, but it will do little to solve the national problem, because our polarization is increasingly a product of our cultural divisions, not our economic ones.

Supreme Disorder would have been a much more compelling book had Shapiro considered judicial restraint as part of a more robust federalism—for the restoration of judicial legitimacy and national order may require it.

Originally published at Law & Liberty on June 18, 2021.

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