WHAT JUSTICES WANT: GOALS AND PERSONALITY ON THE U.S. SUPREME COURT

Vol. 29 No. 4 (April 2019) pp. 46-49

WHAT JUSTICES WANT: GOALS AND PERSONALITY ON THE U.S. SUPREME COURT, by Matthew E.K. Hall. New York, Cambridge University Press, 2018. 224 pp. Cloth $24.99. ISBN: 9781108462907.

Reviewed by Eileen Braman, Department of Political Science, Indiana University Bloomington. Email: ebraman@indiana.edu.

Matthew E.K. Hall’s new book, WHAT JUSTICES WANT: GOALS AND PERSONALITY ON THE U.S. SUPREME COURT, is major step forward in looking at judicial behavior in a creative and interesting way. It covers many of the topics law and courts scholars care about using innovative methods that allow us to study the effects of personality traits on the behavior of Supreme Court justices. This notable achievement should attract the attention of judicial scholars and students of political psychology alike.

Given the myriad of difficulties of ascertaining the traits of political elites “at a distance,” the study of personality went out of fashion in political science until the 1980s when psychologists discovered they could reliably measure traits and their behavioral correlates through mass survey techniques. Hall looks at five traits: Agreeableness, Conscientiousness, Extroversion, Neuroticism, and Openness to Experience. These are, in theory, universal – that is, each trait is thought to exist in each person to some degree. They have been the subject of many psychological studies, offering a new window for political researchers to systematically assess the impact of personality of elite decision makers. In taking advantage of the linguistic software that is now available to measure traits, Hall is the first to investigate how aspects of personality influence behavior in the institution at the pinnacle of our judicial system.

Moreover, his approach is one of the first to take the “collegial” nature of collegial appellate court decision making seriously, on its own terms. When appellate court judges make decisions, they do so as a group rather than individually. The normative justifications for doing so vary. Group decision making can reduce bias, increase accuracy, and bring the representation of different points of view to judicial outputs. Group decision making also has important behavioral implications. To date judicial scholars have largely talked about the group decision in terms of social incentives, like collegiality, but there are others the group context raises. As it seems so integral to his approach, I think Hall could have addressed the research on group decision making a bit more fully. For example, there are really two distinct fields of psychological research on groups. One involves social influence – or the effect groups have on individual cognitive processes – while the other looks at group decision making in and of itself. From social influence research, we know that making decisions in the presence of others can have two contradictory effects. It can either cause “social loafing,” where decision makers employ less effort on a common task, assuming others will pick up the slack, or it can cause “social facilitation,” where the mere presence of others engaged in similar work makes individuals work harder. Psychologists have not been particularly good at figuring out when one versus the other phenomenon will occur. One individual difference that could explain these differing tendencies is the level of conscientiousness of the particular individuals in the group. A few of Hall’s hypotheses ultimately get at this, but if he had explicitly worked in some of our knowledge about social influence theory, it would have made for a much “richer” explanation. There are also findings in the group decision domain regarding polarization versus moderation of views in mixed groups. Again, sometimes the views of individual decision makers become more extreme, but other times they tend to moderate to accommodate the views of others in the group – and psychologists have had trouble saying which phenomenon will happen when. Often the different processes are explained by group composition, but such explanations are not always on target. It seems that the presence of [*47] individuals with more and less agreeableness might just as likely determine which process will prevail.

Other observations about the book fall into three broad categories concerning (1) Hall’s measures and data, (2) his conceptualization of goals related to specific personality traits, and (3) the conceptualization of what institutional behaviors should follow from those goals. Hall presents Supreme Court Individual Personality Estimates (SCIPE) scores of 34 justices on the Court from 1946 to 2015. From the graphic presentation of scores on each of the five personality dimensions, it looks like there is not much variation between justices on any of the “Big 5” traits. I would like to know where the justices’ scores fall in relation to the general populations for which we similar have data. It makes a lot of sense that the justices’ sores on these personality measures would be quite consistent because of self-selection and institutional selection processes (a Supreme Court justice is likely to be an attractive job for people with very similar traits; it is further reasonable that those who are successful enough to be appointed to the Court would have similar traits). Obviously, comparisons are about the justices’ behavior in relation to one another – and that is appropriate. However, I wonder how much research concerning high versus low levels of contentiousness really translates when we are talking about professionals who are probably much more similar than different when put in broader perspective. Even some of the relative comparisons are unexpected. For instance, given Hall’s rather lengthy discussion of the willingness of Justices Douglas and Black to accept privacy arguments in GRISWOLD V. CONNECTICUT in the book’s first chapter, I expected them to be very different on conscientiousness and/or openness to experience – in fact, it looks like their scores are not distinguishable on either dimension.

THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION

Vol. 29 No. 4 (April 2019) pp. 43-45

THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION, by Richard L. Hasen. Yale University Press, 2018. 226pp. Hardcover $30.00 ISBN: 978-0-300-22864-9.

Reviewed by Christopher N. Krewson, Department of Politics & Government, Claremont Graduate University. Email: christopher.krewson@cgu.edu.

What is the legacy of the late Justice Antonin Scalia? According to Richard L. Hasen, many on the ideological right consider him “a rare principled Supreme Court justice who established and applied neutral principles to the most difficult cases.” To others on the left, he was “a justice who let his political, religious, and social conservatism drive him to results-oriented decisions” (p. ix). In his excellent book, THE JUSTICE OF CONTRADICTIONS, Hasen shows why Scalia may be remembered as a disrupter who employed a misleading and inconsistent approach to judicial decision making. Hasen’s primary thesis consists of two parts. First, he argues that Justice Scalia’s emphasis on neutral methods of interpretation masked what was mostly a results-oriented approach to judicial decision-making. Secondly, he contends that Scalia’s caustic behavior and opinion writing were counter-productive because they undermined his ability to enhance the legitimacy of judicial decision-making.

As explained in its preface, the book is not intended to be a biography of Justice Scalia; rather, it considers Scalia’s judicial tenure using a holistic and thematic approach. The purpose of the project is to give “a view from this point in time of [Justice Scalia’s] likely legacy.” In particular, the book explores “Scalia’s fundamental contradictions through an examination of his jurisprudential theories of textualism and originalism, his inimitable and often caustic tone in dealing with his adversaries both on and off the Court, and his jurisprudence in key areas of modern American Law” (pp. xi-xii). The portrayal of Justice Scalia is clearly a snapshot in time and to claim an understanding of his legacy at this point seems a fraught endeavor. Nevertheless, Hasen does a commendable job introducing the reader to the complexity and nuances of Antonin Scalia.

Hasen’s primary claim is that Justice Scalia acted inconsistently with his professed goal “to advocate a completely neutral approach that would lift the Court above the realm of politics” (p. xii). Of course, this deviation from a neutral approach had to do with Scalia’s methods of constitutional and statutory interpretation. Scalia’s overarching judicial philosophy was that judges should enforce the law as written in a way that respected democratic processes and limited judicial discretion. When interpreting law, Scalia purported to rely on democratically-approved text and its meaning as generally understood at the time it was enacted. This approach is referred to broadly as originalism.

Hasen argues that there are two problems with Scalia’s use of originalism. For one, the law is often indeterminate and yet Scalia proclaimed great certainty in his originalist interpretations of law, even in the most challenging cases. Beyond this, Scalia had no qualms with publicly chastising others whom he thought interpreted the law incorrectly – and he did so with language described as both caustic and sarcastic. Secondly, Hasen believes that justices are largely results-oriented. And, he argues, Scalia was no exception. His decisions often coincided with his policy preferences despite lofty rhetoric and the use of a purportedly neutral approach.

WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT

Vol. 29 No. 4 (April 2019) pp. 40-42

WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT, by Kent Greenawalt. Cambridge, MA: Harvard University Press, 2017. 293pp. Cloth $39.95. ISBN 9780674972209.

Reviewed by Philip Kronebusch, Department of Political Science, St. John’s University (MN). Email: pkronebusch@csbsju.edu.

At a basic level, the two religion clauses of the First Amendment complement each other; Congress can neither establish a religion nor can it prohibit the free exercise of a religion. Over time, judges and scholarly commentators have often treated the two clauses separately, classifying some cases as establishment clause cases and others as free exercise cases. Kent Greenawalt largely maintains this practice in a large body of published scholarship, having published an earlier two-volume work, RELIGION AND THE CONSTITUTION, with a volume dedicated to each clause.

In his newest work, WHEN FREE EXERCISE AND NONESTABLISHMENT CONFLICT, Greenawalt’s attention turns to issues that present some mixture of the values of the two clauses. While he uses the term “conflict” in the title, he makes it clear early on that he is not looking at just conflicts, but rather he is focusing on issues where the values of each clause have tension with each other. The author’s key point throughout the book is that many cases involving the religion clauses are best analyzed and understood by recognizing the competing values of the establishment clause and the free exercise clause.

The Supreme Court’s school prayer decisions provide an early example of the mixture of competing values. While these cases are usually analyzed as presenting establishment clause issues, Greenawalt asks the reader to recognize that many students in American public schools may wish to take time to pray and that the teacher providing a moment of silence might be facilitating the free exercise of religion. However, Greenawalt does not disagree with the Supreme Court’s majority decision striking down Alabama’s moment of silence in WALLACE v. JAFREE. Rather, the flaw of Alabama’s law was that “voluntary prayer” was included as a purpose of the law. For Greenawalt, “moments of silence should be constitutionally accepted, so long as no one is told she must or absolutely should pray” (p. 31).

Among the strengths of the book is the attention given to religion clause issues beyond those, like school prayer, that have led to several Supreme Court decisions. Greenawalt dedicates a chapter to the challenges presented when a government directly employs a religious minister as a chaplain in the military or in prisons. Here we see a clear example of the tension between establishment clause and free exercise values. Government hiring and payment to a religious minister would, in most contexts, constitute establishment. However, without these ministers, the ability of soldiers and prisoners to exercise their religion freely would be severely limited. Greenawalt argues that the constitutional value of free exercise allows government to do what would otherwise be problematic under the establishment clause. While the book only occasionally discusses historical understandings of the religion clause, the author’s argument is further supported by citing that Congress authorized army chaplains in 1791, the same year it adopted the Bill of Rights (p. 47). Greenawalt goes on to consider a number of additional issues raised by prison chaplains as government employees. He argues that while a prison chaplain should be permitted to write a letter of support for a prisoner’s application for parole, it would be constitutionally impermissible for the chaplain to serve as a member of a parole board.

SPEAK FREELY: WHY UNIVERSITIES MUST DEFEND FREE SPEECH

Vol. 29 No 3 (March 2019) pp. 34-39

SPEAK FREELY: WHY UNIVERSITIES MUST DEFEND FREE SPEECH, by Keith E. Whittington. Princeton: Princeton University Press, 2018. 232 pp. Cloth $24.95. ISBN 978-0-691-18160-8.

Reviewed by Wayne D. Moore, Department of Political Science, Virginia Tech. Email: wmoore@vt.edu.

In SPEAK FREELY, prominent constitutional scholar Keith Whittington argues that universities in the United States should uphold free speech. This is a timely book on an important topic of widespread interest. Whittington’s analysis is cogent, crisp, well-reasoned, and widely accessible.

This book offers a doubly “internal” perspective toward speech within universities. First, it is written by a highly esteemed faculty member at Princeton University, one of “the great universities on the East Coast” (p. ix). Second, the book largely brackets questions about “external” legal limits on universities, such as the guarantees of free speech in the First Amendment to the U.S. Constitution, along with statutory limits. Whittington instead focuses on how “members of the academic community itself [should] understand their own interests in the free speech debate” (p. 6). His elaboration of “internal” rationales for protecting speech on college and university campuses is interesting in light of the heightened scrutiny of these institutions from the “outside.”

Although many of his arguments operate at a more general level, Whittington is especially critical of current efforts to exclude conservative voices from university life. The preface frames problems of free speech with reference to efforts by students and “outside agitators” to silence and threaten conservative speakers. The final chapter urges universities to counter ideological ostracism and promote viewpoint diversity on campus by being more open to fuller representation of “thoughtful conservative scholars and teachers” (p. 178). Throughout the book, he criticizes universities for their predominantly left-leaning biases.

The book has four main chapters. Chapter 1 articulates Whittington’s view of the primary mission of modern universities. While acknowledging that additional demands have been placed upon institutions of higher education, both historically and in the modern world, he emphasizes that “[a]t heart, the mission of a university is to produce and disseminate knowledge” (p. 13). In handling this and other issues, the book generally groups together public and private universities as well as colleges.

Chapter 2 draws on two strands of political thought to support Whittington’s argument that free speech is integral to this mission of universities to produce and disseminate knowledge. Whittington identifies the first strand with Jeffersonian arguments that free speech is essential to “republican” governance. A key lesson learned from controversies involving the Alien and Sedition Acts of 1798, Whittington claims, was that a power to limit speech was likely to be abused, and thus “no one could be trusted with the power to suppress or punish controversial speech” (p. 36). Instead, at least within the political realm, it was best to “err on the side of liberty and let the people themselves hear all sides and weigh the value of the speech” (p. 36). According to Whittington, these arguments resonated with and reinforced important strands of “the liberal tradition” rooted in claims of individual liberty (pp. 36-37). More specifically, he relies on several branches of John Stuart Mill’s arguments in ON LIBERTY that support an expansive conception of principles of free speech based on its roles in advancing knowledge. In this context, Whittington also endorses U.S. Supreme Court Justice Oliver Wendell Holmes’ argument in ABRAMS V. UNITED STATES (1919) that “the best test of truth is the power of the thought [*35] to get itself accepted in the competition of the market” (p. 45). Shifting the metaphor, Whittington acknowledges that “[n]ot everyone is as optimistic [as Justice Holmes] about the power of truth to prevail in the marketplace of ideas” (p. 46). But he claims that “the university is precisely the type of environment where a ‘free trade in ideas’ is encouraged and ideas are placed in ‘open and free competition’” (p. 46).

JUDICIAL ELECTIONS IN THE 21ST CENTURY

Vol. 29 No. 3 (March 2019) pp. 31-33

JUDICIAL ELECTIONS IN THE 21ST CENTURY, by Chris W. Bonneau and Melinda Gann Hall (eds.). New York: Routledge, 2017. 282pp. Paperback $47.95. ISBN: 978-1-138-18589-0.

Reviewed by David Hughes, Department of Political Science & Public Administration, Auburn University at Montgomery. Email: david.hughes@aum.edu.

Save for the early efforts of pioneers like Philip Dubois and Melinda Gann Hall, it is unclear when public law would have begun taking state courts seriously. Perhaps it was inevitable, however, that the shifting tone of judicial elections from the late 1980s to the early 2000s was destined to get people’s attention. Rising campaign costs, biting televised attack ads, and a liberalized speech environment left many in the legal community—and not a few political scientists—concerned that vigorous campaigns would undermine judicial impartiality or legitimacy.

In 2007, largely in response to the evolving nature of judicial elections, Matthew J. Streb organized the first major anthology devoted to these themes, RUNNING FOR JUDGE: THE RISING POLITICAL, FINANCIAL, AND LEGAL STAKES OF JUDICIAL ELECTIONS. Its contributions reflected the deep sense of ambivalence many felt toward judicial elections at that time. More than a decade has passed since Streb’s text, and the volume of scholarly research on state courts has grown exponentially. Significant new theoretical, methodological, and empirical advances have been made in a remarkably short time, and these advances justify reflection on what we have learned during this span and what research questions still demand our attention.

JUDICIAL ELECTIONS IN THE 21ST CENTURY, edited by Chris W. Bonneau and Melinda Gann Hall, helps to fill this void. It picks up where RUNNING FOR JUDGE (2007) left off: How have judicial elections affected the politics of the judiciary since the turn of the century? For long-time observers of judicial elections, its themes will ring familiar: How do expensive campaigns affect judicial selection and legitimacy? How independent, diverse, or representative are state judges? How do these factors vary within the judicial hierarchy?

Much of the research in JUDICIAL ELECTIONS reflects how our understanding of these institutions has changed in recent years. Many of the concerns raised by judicial reform advocates in favor of eliminating judicial elections have simply not stood up to empirical scrutiny. For example, Michael Nelson reminds us that judicial elections are often legitimacy enhancing; Melinda Gann Hall and Matthew J. Zalewski show how campaign advertising has diminished in recent years, even taking on a more positive tone; and Drew Noble Lanier and Mark S. Hurwitz reveal that elected courts produce benches that are, on average, no less diverse than appointed ones. Other examples abound.

The contributions to JUDICIAL ELECTIONS are, as the editors explain in their introductory chapter, largely original, accessible to a general audience, evidence-based, and written by many of the field’s leading scholars. One might expect that a collected work such as this would find its authors returning to the themes with which they are already associated in the scholarly literature. And while readers might anticipate some of the hypotheses, data, or findings based upon their familiarity with these previous works, no such familiarity is needed as each chapter presents new, interesting, and accessible information.