“The (Supreme) Court is more partisan and polarized because both politics and the elites who disproportionately determine its course – and staff the federal judiciary – are more partisan and polarized. Contemporary presidents pay more attention to ideology when selecting Supreme Court justices than their predecessors did.”
– Neal Devins and Lawrence Baum, The Company They Keep, 2019
Devins and Baum seek to explain why every member of the contemporary Supreme Court plays in the partisan politics league. They cite the period following the retirement of Justices David Souter (2009) and John Paul Stevens (2010) as the first time in history that Supreme Court voting blocs corresponded perfectly with the party of the appointing president.
Bipartisan majorities and bipartisan dissents occurred in every major case decided by a fractured Court during the nineteenth and much of the twentieth centuries. Republican appointee Harry Blackmun and Democratic appointee Thurgood Marshall joined hands in the Roe v. Wade majority, as did Republican appointee William Rehnquist and Democratic appointee Byron White in the dissent. Hardly any Roberts Court decisions feature both bipartisan majorities and bipartisan dissents.
Now, decisions like Trump v. Hawaii, in which the five conservative Republican appointees outvoted the four liberal Democratic appointees to uphold President Trump’s travel ban, are the norm.
(Mark A. Graber. “How the Supreme Court Learned to Play Politics.” Washington Monthly. January/February/March 2019.)
How the Supreme Court Became Extremely Political
Devins and Baum point to the usual suspects when explaining the increased partisanship of the Supreme Court. The authors state …
“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 Warren Court articulated this elite consensus. In cases ranging from school segregation to school prayer to the rights of the accused, Republicans and Democrats on the Warren Court took the positions favored by the Republican and Democratic establishments even when those positions differed from those of a majority of citizens with less education, wealth, and social status.”
(Mark A. Graber. “How the Supreme Court Learned to Play Politics.” Washington Monthly. January/February/March 2019.)
The Company They Keep breaks from the literature on Supreme Court decision making by describing judicial partisanship as a social phenomenon – a consequence, in part, of justices wanting approval from their elite peers. Everyone wants to be liked, social psychologists observe. 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.”
Another new book, Adam Cohen’s Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020), contends that the last half-century of the court has not been the story of a partisan divide so much as a rightward ideological turn.
The “past half century,” he contends, has witnessed a shift in the court “away from its onetime commitment to the middle class and the poor, in favor of the wealthy and the powerful.” In Cohen’s bold telling, the court has “sided with the rich and powerful against the poor and the weak” in “virtually every area of the law” since the Nixon administration.
Cohen says the liberal justices of the Warren court era helped combat incarceration, stood up to the Jim Crow South, guaranteed women access to reproductive care (eventually including abortions), and came close to establishing a constitutional right to welfare for the poor. However, this era came to an end, however, with a confirmation battle.
“In the summer of 1968, the lame-duck Lyndon Johnson nominated Associate Justice Abe Fortas to succeed Earl Warren as chief justice. Fortas was a reliable liberal vote and a champion for poor litigants before the court. He had represented Clarence Earl Gideon in 1963 in the case that gave indigent criminal defendants the right to a publicly funded lawyer.
"Controversy arose, however, over Fortas’s cozy political relationship with the president and over payments Fortas received from shadowy corporate interests for a seminar he taught at American University. Fortas withdrew from consideration. A year later, when further damaging information came out about a secret financial arrangement with a wealthy businessman convicted of stock fraud, Fortas resigned from the court altogether.
“The confirmation of Chief Justice Warren Burger in Fortas’s place in 1969, followed by three further Nixon appointees, fundamentally altered the role of the court and began to roll back the progress made at mid-century.”
(John Fabian Whitt. “How the Republican Party Took Over the Supreme Court. New Republic.https://newrepublic.com/article/156855/republican-party-took-supreme-court. April 07, 2020.)
As Cohen sees it, the court has ever since been the “Nixon court.” The justices on this new Republican-dominated court have blessed law enforcement efforts to ratchet up the punishment of criminals, thereby driving mass incarceration. The court has limited the rights of the poor to welfare payments and blessed inequalities in public school funding.
“In campaign finance, the justices have cheered on efforts by wealthy individuals and firms to use their money to dominate election environments, even while making it more difficult for those without such riches to participate in the political process.
“Workers have seen their rights diminished by a series of decisions upholding arbitration agreements and rejecting class-action treatment for cases alleging widespread harms.
“Consumers have watched as the court very nearly abolished some of their rights by upholding waivers of the right to bring class actions altogether. ”
(John Fabian Whitt. “How the Republican Party Took Over the Supreme Court. New Republic. April 07, 2020.)
Cohen contends that simple political willpower explains the court’s rightward turn. Republicans, he writes, “simply seem to have wanted it more,” making the court “a focus of their politics in a way Democrats have not.” A better explanation is not that GOP has tried harder, but that particular patterns of partisan coalition-building and mobilization over the past half-century have produced a world in which the court is able to play a special role for the GOP.
(Adam Cohen. Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America. 2020.)
What Is the Sad Reality?
Shouldn't the highest court in the land be free of partisanship and dedicated to truth and justice? A look at public opinion helps answer the question. Politics play an important role in American's view of the Supreme Court. Pew Research found that the partisan gap in views of the Court is among the widest in two decades.
Republicans and Republican-leaning independents now have a much more favorable view of the Supreme Court than they did before the election of Donald Trump. Three-quarters of Republicans regard the court favorably – up from 51% in August 2016, before Trump’s election and subsequent appointment of Justices Neil Gorsuch and Brett Kavanaugh.
By comparison, only around half of Democrats and Democratic leaners (49%) view the Supreme Court favorably, down from 70% in August 2016. Among liberal Democrats, specifically, just 40% have a favorable view of the Supreme Court – the lowest percentage among this group in at least 15 years.
(Bruce Drake and John Gramlich. “5 facts about the Supreme Court.” Pew Reseach Center. October 07, 2019.)
The Supreme Court was intended to be apolitical and insulated from “occasional ill humours in the society.” In practice, appointments are highly partisan. For all their talk of seeking neutral arbiters, presidents usually nominate judges they expect to uphold laws they support and overturn ones they oppose. Once confirmed, however, justices are supposed to be no longer beholden to the presidents who chose them.
But especially in the last fifty years, Supreme Court occupies a more complicated and ambiguous place in the political system. It is difficult to assess the extent and content of the Court’s intervention in the policy process. The impact of the Court’s interventions on government and society is even more uncertain.
Justice Ruth Bader Ginsburg’s death has pulled the U.S. Supreme Court deeper into the nation’s bitter political wars, threatening lasting damage to the reputation of a governmental branch that has struggled to remain above the partisan fray.
President Donald Trump and Senate Republican Leader Mitch McConnell are vowing to fill Ginsburg's seat despite the impending election. Outraged Democrats are now talking about drastic measures should they gain control of the Senate and the White House in November, with some even musing openly about an historic upheaval to the court’s makeup – adding seats to the nine-member bench to dilute the conservative majority.
“It’s a difficult time and a very perilous time I think for the court in its legitimacy. All of this maelstrom around the court is never good for it because it draws it into the muck and mire of everyday politics,” The vacancy has created this perfect storm of controversy.”
– Barbara Perry, presidential and Supreme Court scholar at the University of Virginia’s Miller Center.
The outcome could be messy. Trump could nominate a justice, lose the Nov. 3 election to Democrat Joe Biden, and then see his nominee confirmed by a lame-duck Senate. And if Democrats take control of the Senate, many of the very senators voting to confirm Trump’s choice already would have been thrown out of office by the voters.
The upshot could be lasting damage to the court’s reputation and its role in American democracy at a time when both parties are already nursing grudges stemming from Trump’s previous two nominations.
(Greg Stohr. “Trump Rush to Fill Seat Draws Supreme Court Into Political Mire.” Bloomberg Law, September 20, 2020.)
Whether the approval of their elite peers or a rightward ideological turn – no matter the exact measures of the reasons, the partisan and polarized Supreme Court has become an important political entity. More and more, it seems, the high court serves those at the top.
“For five decades, the Court has, with striking regularity, sided with the rich and powerful against the poor and weak, in virtually every area of the law. … [T]wisting the law to rule against employment discrimination victims… campaign finance law… election law… corporate law… criminal law… [O]n a wide variety of issues, the Court has ruled, often cruelly, against the poor. … [I]n the aggregate they add up to … a systematic rewriting of society’s rules to favor those at the top and disadvantage those in the middle and at the bottom. … [M]ore liberal rulings have generally been on social issues.”
– Adam Cohen
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