Tag: Byron White

Neal Devins and Lawrence Baum’s new book, The Company They Keep, seeks to explain why every member of the contemporary Supreme Court plays in the partisan politics league. Courts were not so partisan through much of the twentieth century because most elites played in the same moderate liberal league. Both elite Republicans and elite Democrats during the New Deal and Great Society era favored racial equality, free speech, and secularism. The partisan Roberts Court differs from the bipartisan Warren Court because elite Democrats and Republicans now differ on the crucial constitutional issues facing the nation. The Company They Keep breaks from the literature on Supreme Court decisionmaking by describing judicial partisanship as a social phenomenon—a consequence, in part, of justices wanting approval from their elite peers. Supreme Court justices are no different. If people particularly want to be liked by their peers, then Supreme Court justices will be “particularly interested in being held in esteem by the elite communities they are a part of.” Supreme Court justices are not simply individuals, but members of teams that play in partisan political leagues. That the majority on the Roberts Court plays for the conservative Federalist Society team may explain the direction of constitutional law far more than a mere desire for approval. Team members provide the justices with cues as to what constitutes a conservative position. Members of the contemporary Federalist Society team, by comparison, play with people who are certain that murderers ought to be punished by death.