As central banks go, the Federal Reserve is one of the best. Much academic literature suggests that one of the reasons for its relative success is its relative political independence and freedom from partisanship. Central banks that are partisan or politicized are likely to engineer booms to elect the candidates of their party even if those booms have unfortunate long run effects on the nation. The classic case is a bank that pursues a loose money policy in the run up to the election to create a false sense of prosperity or to enable the party in power to finance…
Many presidents of universities, including my own, have committed their institutions to supporting the Grand Coalition on Climate Change. The founding statement of the Coalition criticizes President’s Trump decision to pull out of the Paris Agreement on Climate Change and offers support for various policies by state and local governments to pursue the objectives of that agreement.
It is a serious mistake for universities as institutions to criticize or support controversial political initiatives, let alone become part of political coalitions. Universities must stay of out of politics and refrain from policy endorsements that are by their nature political. By maintaining their institutional neutrality they can best foster debate and further the progress of knowledge about controversial issues of the day. Universities are brokers of knowledge. To be honest brokers, they must eschew politics.
Wading into politics imposes two kinds of costs. The first is a chilling effect on debate and free inquiry within the university.
It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around or oppose policies or nominees of the sitting President, simply by virtue of his party. And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.
But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.
The Democratic judicial philosophy has also become clearer. At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.
The confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.
There are three paradigmatic types of Supreme Court justices—the jurisprude, the ideologue, and the partisan. While no actual Supreme Court justice perfectly represents the ideal, some present pretty close approximations. It is hard to understand or predict the results of Supreme Court cases without determining how a particular justice fits into these types.
The jurisprude is a justice committed to a particular method of judging rather than an particular set of results. On the current Court the examples par excellence are Justices Antonin Scalia and Clarence Thomas who are committed to originalism. From the past Justice Hugo Black was a textualist and Felix Frankfurter, his sparring partner, advocated an historical jurisprudence. These jurisprudential commitments frequently lead to unusual ideological results. Justice Scalia (and Justice Thomas as well) vote for criminal defendants based on their close readings of the language of the Constitution, like the Confrontation Clause. For originalist reasons, Justice Thomas is no friend of preemption claims with the result that in his opinions businesses often lose to state tort law and regulation. Despite being a New Deal populist as a Senator, Black as a Justice wanted to enforce the Contract Clause against debtors.
The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way.
Many people worry about our democracy today because our political parties have become more purely ideological. But federalism harnesses such partisanship and puts it to good use. Because of greater partisanship, we are seeing more states with a unified government in which Democrats or Republicans control the governorship and both houses of the legislature. They are then able to enact a relatively pure version of their parties’ very disparate political positions. With the support of a Republican legislature, Wisconsin Governor Scott Walker has reduced the power of public sector unions. Kansas Governor Sam Brownback has very substantially cut personal and business taxes. In contrast, Connecticut Governor Dan Malloy was reelected after raising taxes and making no substantial changes to union power. In California, Jerry Brown was victorious with much the same policies.
Such partisan federalism now gives us the chance to observe the results of such policies over the longer term.
Following politics can often be extremely frustrating if one seeks something like truth as opposed to victory. So much of what goes on involves one sided arguments that one side accepts as God’s word and the other treats as the Devil’s. Part of the problem is ignorance about politics that is fueled by what is known as rational ignorance. Another part of the problem is the emotional charged aspects of political debate. Yet another part is that people view political matters as involving teams – statements are seen as supporting one or the other team, and players are supposed to…
In a recent article in the New York Times Adam Liptak describes the increasingly partisan splits on the Supreme Court. More than at any time in its history, he argues, the divisions in cases follow partisan as well as ideological alignments. Thus, today the five justices appointed by Republican Presidents (the Chief Justice, Scalia, Kennedy, Thomas and Alito) vote consistently more conservatively than those appointed by Democratic Presidents (Ginsburg, Breyer, Sotomayor, Kagan).
For the moment I will accept Liptak’s statistics and focus on his explanations. Liptak argues that partisan polarization is the result of increased polarization more generally, as Republicans and Democrats move to become cohesive ideological parties, distant in their policy preferences. Moreover, Liptak argues Presidents have become better at predicting justices’ votes. These factors are certainly relevant, but I think they miss one important change. Originalism and its often close cousin in statutory interpretation—textualism— today create a larger gulf in jurisprudential approaches to the Constitution and statutes between Republican and Democratic appointees.
There was not such a consistent jurisprudential chasm in the Court for much of the latter part of the twentieth century. There were no originalists on the Court when Scalia joined it. Thomas then became another powerful originalist voice. While Alito and Roberts are not pure originalists, the original meaning of the text has a strong pull for them even if precedents restrain the extent of its power. Their opinions on the commerce clause in Sibelius are excellent examples of the power of the text; the Democratic appointees did not even substantially respond to the originalist arguments.