By Matt Goldstein and Kristine Craig
On May 27th, 2014, DPR International Editor Matt Goldstein and Editor in Chief Kristine Craig conducted an interview with UC Davis American Politics Lecturer John B. Gates. Touching on several pertinent topics within judicial politics, he helps shed light on the often silent and secretive inner workings of the Court and what effect its actions have on the American public. After attending the University of Maryland as a graduate student and receiving his first academic position at the University of New Orleans, Gates came to UC Davis in 1987. As a graduate student, he worked as a Legislative Analyst for the Maryland State Legislature. He currently teaches classes focused on American judicial behavior with an emphasis on the Supreme Court at UC Davis.
DPR: What is the role of the Supreme Court in American politics? Should there be more support for either the majority or the minority?
JG: “Whether or not the Supreme Court is consistent with democracy and our majoritarian preferences is one of the most important questions you can ask about the Court. Our democracy has become more popular such as the expansion of suffrage and popular elections. At the same time, however, we have this unelected institution that can overturn the popularly elected branches. If we are looking at how the Court changes its policies over time, membership change is the most critical factor. In order to change policy at the constitutional level, who sits on the Court is extremely important. Whether it is in sync with the popularly elected branches that are installed through elections depends on the turnover of the Court. Unfortunately, social scientists have a difficult time studying this area because turnover of the Court is a nearly random variable and does not change with elections like other institutions. Sometimes membership change creates synchronization between the Court and the majority, but this is not always the case.”
DPR: How much power does the Court really have, considering it has no enforcement power?
JG: “We are still coming to grips with the impact and the scope of the Court’s decisions. The clearer the Court is in its opinion, the more likely their decisions will be complied with by the lower courts and enforced by the bureaucracy. The Court’s impact varies depending upon whether you are referring to society as a whole, or to those directly affected by the decision. If you take the more narrow view, it is the clarity of the Court’s decisions that is important. One thing that often gets missed when talking about the Court’s impact is that some of its decisions do not involve major change, the subject of a lot of impact studies. However, sometimes the Court makes really important decisions that simply diffuse conflict. We don’t have a good understanding of what precipitates this type of decision but we do know that the Court has been successful in diffusing partisan conflict in the past. In the 1992 case Planned Parenthood v. Casey, abortion had the potential to be a major campaign issue but virtually disappeared from the campaign debates because the Court’s decision pleased no one. To a more limited extent, the Affordable Care Act is also an example.”
DPR: In our legal system, lower courts are required to follow precedent set by the Supreme Court. Yet, as we have seen in many cases that eventually reach the Supreme Court, lower district courts often make decisions that contradict previous Supreme Court decisions and those cases end up being appealed to higher courts. Why are judges in lower courts making decisions that go against the Supreme Court when it supposedly has the “supreme law of the land“?
JG: “The clarity of the decision of the Court allows for more deviation. One of the best studies I’ve seen looked at the U.S. Courts of Appeals. It showed very clearly that the Court of Appeals is more likely to follow Supreme Court decisions when the Court is clear as to what is being commanded. The lower courts’ ability to move depends on whether the precedent allows them that discretion. If they have that kind of discretion, they are going to do what you and I would do; we are going to pursue our preferences.”
DPR: Even in cases where the Court makes a unanimous decision, you often see Justices write concurring opinions. Dissenting opinions in non-unanimous decisions are also fairly common. How does this impact the image of the Court in the eyes of lower courts, and the public? Also, should the public be concerned that the Court does not always unanimously agree on decisions made?
JG: “We know that the Court has a tremendous reservoir of support by the public. It can make an unpopular decision and there will be a brief decline in support for the Court. Yet public support rebounds. Past research has not emphasized the divisiveness of the court (as to whether its 5-4 or 9-0). We have seen some evidence of a decline in the Court’s support over the last five years. At the same time, there has also been an increased polarization on the Court in its most highly divided cases. We do not know precisely the dynamics of these two trends.”
DPR: Until recently, Justice Clarence Thomas went seven consecutive years without saying a word at oral argument. Is he “not doing his job” as some may suggest, or is it enough that he uses writing to express his opinions?
JG: “There are some people I respect a great deal who feel that this is not becoming of his office and he should be actively engaged in oral argument. My personal opinion is we all have different work styles. I don’t put a lot of weight on the number of questions each Justice asks. I’m not sure I want to criticize Justice Clarence Thomas for wanting to sit and listen. Justice Douglas rarely asked any questions. In fact, Justice Douglas was known for writing extensively during oral arguments and it was suspected that he was writing wilderness books during that time (which he denied).”
DPR: Since 1965, affirmative action has become a majorly debated topic, both by the public and by the government. In the last few decades, the Court has changed its mind several times. In one of its most recent affirmative action cases, Fisher v. Texas (2013), the Supreme Court upheld affirmative action to a large extent. Based on the Court’s action so far, and your understanding of the way the Court acts in general, what do you foresee in the future with regard to affirmative action? Will the Court ever make a definitive decision on affirmative action?
JG: “Since 1995, the Court’s treatment of Affirmative Action has been on unsteady footing constitutionally. I don’t think that the Fisher case represents anything other than the Court ‘punting’ for a moment. The constitutionality of Affirmative Action in higher education hinges on diversity as a compelling state interest. In a 2003 case [Grutter v. Bollinger], Justice O’Connor wrote the majority opinion in a 5-4 decision upholding one of the University of Michigan’s admission policies. Justice O’Connor is no longer on the Court. Current Chief Justice Roberts is not in favor of affirmative action. Justice Alito, O’Connor’s replacement, has not supported affirmative action in other contexts. Therefore, simple vote counting would lead one to believe the Court will not uphold affirmative action in higher education.”
DPR: In 1987, the U.S. Senate rejected Robert Bork from admittance to the Supreme Court. Many suggest Bork’s rejection has had an everlasting effect on the judicial appointment process, as it has reinforced partisanship and brought it to the forefront of the nomination and appointment process. How has this affected Presidential nominations and Senate approval?
JG: “We have a study of Senate voting showing how partisanship of senate confirmation voting goes back to the 1960s. If we look at Senate voting on confirmations, it really became more partisan at that time. Bork’s rejection certainly intensified partisanship. The Bork rejection also helped change the norms in the Senate with respect to lower courts. Lower courts confirmation proceedings became more divisive and partisan as a result. If there is divided government, nominations have to be more in the middle of the ideological spectrum to gain Senate approval. That has not changed because of Bork, but rather always been a part of the process. Presidents have always been mindful of what awaits them in the Senate.”
This interview has been edited and condensed.