The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the weekend, Erwin Chemerinsky, Dean of University of California at Berkeley School of Law effectively accused the Republican appointed justices of the Supreme Court of being "partisan hacks." Josh Blackman commented on Chemerinsky's op-ed yesterday. In my view, he was too gentle.
In his op-ed, Chemerinsky argued that "time and again the court's Republican majority has handed down decisions strongly favoring Republicans in the political process." As Josh noted, Chemerinsky conveniently ignored all of the 2020 election cases in which the Supreme Court refused to intervene. Josh could have also noted that the evidence Chemerisnky cites does not support Chemerinsky's claims.
In a series of rulings, with all of the Republican-appointed justices in the majority and the Democratic-appointed justices dissenting, the court has strongly tilted the scales in elections in favor of Republicans. In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.
Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1.
This passage would lead the reader to believe that the Supreme Court's Citizens United decision unleashed a torrent of Republican-leaning campaign expenditures. But let's take a closer look.
The source for Chemerinsky's claim about corporate interests outspending labor interests is a Guardian op-ed, which in turn links to Open Secrets, which shows a 16-to-1 "advantage' of business contributions over labor contributions. Note, however, that this data includes campaign and PAC contributions, which were not affected by the Citizens United decision. (The case concerned independent expenditures).
Note further that the 16-to-1 number is based upon attributing all individual contributions to the individual's employer. So, if a partner at a big DC law firm, Wall Street investment house, or Silicon Valley tech firm gave money to a candidate, Chemerinsky's source characterized that as a "business" contribution. Moreover, as Open Secrets notes, "Since nearly everyone works for someone, and since union affiliation is not listed on FEC reports, totals for business are somewhat overstated, while labor is understated." But, wait, it gets worse for Chemerinsky's claim.
Not only does Chemerinsky cite data about contributions (which were not at issue in the Citizens United decision), as opposed to expenditures (which were), he claims this is evidence of the conservative justices supporting Republican interests, but that is not what the source of his data shows. According to the Open Secrets page that is the source of his claim, "business" contributions in the 2016 election cycle to Democrats and Republicans were evenly matched, while overall contributions tilted in Democrats favor. In other words, Chemerinsky's claim that business interests, "overwhelmingly favor Republican candidates in their campaign expenditures" is contradicted by his own source. His claim is false. The Los Angeles Times should publish a correction.
Is it possible Chemerinsky just cited the wrong source? Perhaps. If one instead wants to look at the effect of Citizens United on independent expenditures (which is what was actually at issue in the case), do we see support for Chemerinsky's claim? A little. Open Secrets has data on this too. It shows that conservative outside spending exceeded liberal outside spending in the 2012 and 2016 election cycles, but not in 2020. Further, this includes spending during primaries, in which independent expenditures were used for internecine battles, and not to advance one party's candidate over another's.
Perhaps Chemerinsky is just accusing Republican appointed justices of being partisan because they are reaching conclusions he does not like. After all, Chemerinsky repeatedly gives liberal justices a pass for behavior that is no less partisan than that which he laments from the conservatives. If anything, he would like them to be more partisan, at least when it comes to their retirement decisions. For instance, here is Chemerisnky urging Justice Breyer to step down while Democrats control the White House and Senate.
Keep this in mind when considering Chemerinsky's complaint that the conservative justices voted to uphold Arizona's voting laws in Brnovich v. Democratic National Committee. What Chemerinsky fails to mention is that the conservative justices reached the same conclusion as the Biden Administration's Justice Department –that the Arizona laws did not violate the Voting Rights Act—while the liberal justices adopted the line pushed by the Democratic National Committee. And from this we are to conclude that conservative justices are the partisan ones?
If the conservative justices were partisan hacks, we would expect them to vote as a block, and yet that is not what we see. Indeed, the justices appointed by Democratic presidents vote in lockstep significantly more so that do the Republican justices. Taking the data compiled by SCOTUSBlog from this past term, the average rate of agreement of the Court's liberals was over 90 percent. For the conservatives it was only 86 percent. (Both numbers are high because of the large proportion of unanimous cases.) Is this distinction a function of the Chief Justice's moderation? Not really. Exclude the Chief and the average rate of alignment among the other conservative justices is still only 87 percent. The reality is that the Court's conservatives break ranks with each other more often that the Court's liberals do.
My claim is not that the liberal justices are "partisan hacks." I believe that the liberal justices—indeed, all the justices—make a good faith effort to reach the proper decisions in the cases before them, in line with their underlying judicial philosophies. But if one wishes to ascribe justices' behavior to partisan behavior, the evidence supporting such a charge against the Left is as strong, if not stronger, than that Chemerinsky marshals against the Right.
That Chemerinsky sees the behavior of the Court's justices in political terms may be a funciton of his own judicial philosophy. As Chemerinsky admitted in this Q&A with Orin Kerr, he does not believe the Constitution itself is particular constraining and that one's constitutional law views are largely driven by policy preferences. This could explain Chemerinsky's, er, flexible view of some constitutional questions—such as the permissibility of the Senate filibuster and how it could be eliminated. But just because Chemerinsky is comfortable aligning his views of constitutional law with his policy preferences does not mean that everyone else does. And just because he insists on seeing some legal questions in partisan terms does not mean the justices do.