Polarization is not Extremism

People talk a lot about political polarization these days, and there's a general tendency to feel that increased polarization means increased radicalness, extremism, etc., at the expense of moderation and compromise. Well, that's not necessarily the case. Consider the following example, which is really polarization-meets-life-appointment. Right now, the U.S. Supreme Court is extremely polarized. Four Justices, Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg, and Steven Breyer, are rather consistently liberal in their rulings. Another four, Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito, are consistently conservative. The ninth Justice, Anthony Kennedy, is a more moderate conservative, and a bit of a swing Justice. This means that, on essentially every case, Justice Kennedy can count on having four Justices to his left, and four Justices to his right, making him the marginal Justice every time. Or, to put it another way, Anthony Kennedy is the Philosopher-King of the United States, for he is almost guaranteed to be in the majority on every case no matter how he rules.



This is a very unusual situation in Supreme Court history. Consider, for example, Justices William O. Douglas and Hugo Black. They were known as allies in their lonely crusade for First Amendment absolutism, particularly regarding free speech. They argued that when it said "Congress shall make no law abridging the freedom of speech," it meant no law, no matter how offensive the speech seemed or how strong the justification seemed to be for suppressing it. None of these balancing tests, no Potter Stewart-esque knowing it when you saw it for these Justices. But in Griswold v. Connecticut, finding a somewhat nebulous privacy protection of contraceptive purchases for married couples, Black dissented from the majority opinion written by Douglas. For Justice Black, that kind of extension of the Bill of Rights into unenumerated territory was simply unjustifiable, unsupported by the text. So both Black and Douglas had rather "extreme" positions on both free speech and privacy, but whereas they agreed on free speech, they were opponents on privacy. If we compare Justice Black to Justice Breyer, for instance, we find that his substantive positions are almost always more forceful, more radical, more extreme. But, unlike Breyer, he had a mix of what would typically be viewed as left-wing and right-wing positions.

And, typically, most people on the Court had similarly mixed portfolios of positions on different issues in constitutional jurisprudence. That meant that, from one case to the next, you could have dramatically different coalitions on the Court. The whole situation was fluid, and therefore unpredictable; you needed to think separately about the proclivities of each Justice. We don't have that anymore; the coalitions are basically written in stone at this point, with the only question in any interesting case being which one of them will join Kennedy's opinion. But not because people have gotten more radical! Today's liberals are pathetic weaklings compared to William Brennan, or Douglas, or Thurgood Marshall, or even Black when he was in a liberal mood. Okay, I suppose the conservatives are pretty damn conservative, aren't they? But that's not the point: what's different is that each Justice's alignment on the various cases that come before the Court are strongly correlated across subject areas. That, and not anything about the substantive radicalness of the opinions involved, is polarization.

Similarly, of course, with the elected branches. The rise in polarization has happened basically because the "racist" opinion-complex broke off from the "economic liberal" opinion-complex and migrated over to the "conservative" complex, i.e. the Southern Democrats all became conservative Southern Republicans, leaving a more liberal Democratic Party comprised just of the old Northern liberals, who've been liberal all along, and a Republican Party now dominated by the same Southern conservatives who used to clog up the Democratic Party. No one's opinion changed, nobody got more radical, it's just that different positions lined up into stronger correlation with one another. (Okay, some people got more radical, and some people got less radical, but for my purposes we can pretend that didn't happen.) And it's certainly not clear why that's a bad thing; after all, you'd sort of expect broad differences in world-view and underlying philosophy to lead to rather broad-based and consistently predictable differences in opinion on a multitude of topics.