Legal Commentary

The Supply-Side Alternative, Part I

By Jack M. Balkin

Let me state right up front that I think Jack?s theory (jointly produced with Sandy Levinson) is, as essentially electoral theories of constitutional change go, about as good as you can get. Put simply, judicial behavior changes over time in response to shifts in popular attitudes, which are driven in large part by popular mobilization. Critically, the sole operative mechanism in his system is judicial appointments. Popular opinion changes, this filters down into the preferences of members of Congress and the president, and appointments represent the ?vector sum? of (legislative and executive) preferences at the time of appointment. This does not require that Justices care a whit about popular opinion. All that is assumed is that the preferences of potential Justices are well-known at the time of appointment, and that the Justices that are appointed represent the point of overlap between Congress and the president.

This theory clearly flows into a theory of legitimation. If we think that democracy?defined here as conformity to popular preferences?is the sole means of legitimation, then a system that operates as Jack has described will (averaging over time) produce courts that reflect popular opinion. Courts are, therefore, at least as democratic?and thus legitimate?as any of the other branches.

This is a seductive theory, both in explanatory and normative terms, for legitimating judicial review in a democracy. However, if the explanatory piece of the theory is lacking, then parallel questions arise about the theory?s normative side. Let me suggest a few reasons for doubting the sufficiency of the explanatory side, and leave the normative problems for later.

Balkin?s is an exclusively demand-side theory. By that, I mean that judicial behavior can be wholly explained by electoral demand. There is a single point at which legislative and executive preferences meet, and judicial appointments are made at that point. While there are instances where Justices do not do what the popular branches expect them to do, these are the equivalent of ?random errors,? which effectively cancel each other out over time. It is thus reasonable to assume that electoral ?demand? determines what courts do.

Building on the arguments of Charles Epp in The Rights Revolution, I argue in The Rise of the Conservative Legal Movement that there are considerable problems with a purely demand-side theory of judicial behavior. In short, a demand side model of judicial behavior?as valuable as it is?generates substantial unexplained variance that only a supply-side model can account for. While I go into much greater detail on this matter in my book, let me present just a few supply-side factors that demand-side theories will need to either argue are relatively unimportant, or (I think inevitably) absorb into a more comprehensive theory. I will present the first factor in this post, and two others in subsequent posts.

Factor One: ?The Pool.? The implicit assumption of demand-side theories is that those making judicial nominations always have available to them nominees that represent their ideological preferences (subject to what they believe they can get past Congress). I think that this is far from guaranteed, because the ?pool? of potential nominees is far from comprehensive. To paraphrase Don Rumsfeld, presidents go into judicial nomination wars with the potential nominees they have, not those they might want. For various reasons, at any one time presidents find that the people who meet prevailing standards of what makes an appropriate nominee are exceptionally limited. While the ?pool? may include at least one nominee who meets their ideological preference (while also meeting prevailing standards of appropriateness and potential confirmability), presidents care about more than judicial philosophy. They also care about ethnicity, gender, geography, age, past political favors and other factors unrelated to ideology. Therefore, if the pool of potential nominees is limited, presidents will find that they have to choose between their long-term interest in shaping the behavior of the court, and these other factors. The larger the pool, the more presidents can satisfy both their ideological preferences and their narrower political objectives (for example, choosing both a woman and a reliable conservative).

Now, if all presidents faced an equally limited pool, then this would not be a problem for a demand-side theory. But the supply-side theory of judicial behavior claims that they do not. The pool of potential nominees is produced by factors outside the control of presidents, typically by forces internal to the legal profession, or the result of investments by political coalitions in producing ?well-groomed? nominees that occur well before (in some cases decades before) presidents start looking for people to put on the bench. Just as important (and this is especially significant for lower-court judges), presidents are limited not only by the content of the pool, but also by their ability to identify attractive nominees, and to predict the long-term ideological preferences of those in the pool. This information is a function of ideological networks, which take a great deal of time to develop, and which presidents must take as essentially given at the time they make the choices of judicial nominees. Put simply, the partisan coalition with a deeper pool, and with networks to choose effectively within it, will do more with whatever political opportunity their electoral power presents them with. And there is no reason to believe that the size of the pool and the effectiveness of networks will track the relative electoral power of competing party coalitions.

In my next two posts, I will present (at least) two other supply-side factors: agenda control and the scope of legally legitimate ideas.

Full post as published by Balkinization on March 30, 2008 (boomark / email).