Despite Our Best Efforts, the Supreme Court Remains Fairly Apolitical
By Erik Fogg
Getting “your” supreme court judge appointment is a constant high priority in presidential elections… and a constant source of fear-mongering in campaign emails and rallies.
This anxiety is based in the idea that supreme court justices are either “conservative” or “liberal,” and on a given issue they are likely to apply one of those lenses. There is always the “swing vote” justice, who used to be Kennedy and now seems to be a role that either Roberts or Gorsuch is taking up. (People seemed shocked that Gorsuch, a “conservative,” ruled in favor of a broad interpretation of LGBT protections.)
But the facts don’t seem to support that narrative–at least not well.
A reader reached out to me with the surprising fact that 5–4 decisions make up only 19% of decisions by the Supreme Court; more than half of all decisions are 7–2 or better. The Washington Post did the research, and our reader helpfully provided a database where you can do your own research to look at trends over time.
Justices from Ginsburg to the late Scalia (who Ginsburg called her “best buddy” and they famously hung out together on the beach) consistently try to make clear to Americans that they are not legislators. They are not making decisions about what is right or wrong; they are making decisions about whether the law (particularly the Constitution) deigns a particular law or action by the government or an individual (always with some sort of civil or criminal proceedings) to be legal or not.
Supreme Court justices have different philosophies on considering the meaning of the Constitution and how much it naturally evolves versus evolves only through amendments. They have to make choices through precedent on whether a law or Constitution does or does not apply to a case, and attempt to form a consistent interpretation. That’s what judges do. Great judges have the experience and intelligence to do it very well.
These different philosophies are argued endlessly among the academic halls of legal universities. You and I probably are not sufficiently educated to say that one Justice’s legal philosophy is sound or not.
Ultimately, the SCOTUS is often painted as a conservative vs. liberal slugfest. It’s largely not. They usually largely agree, and very rarely vote in the “blocks” we have assigned them–less than one in five votes look like that. (And not all 5–4 votes are along the partisan lines that we’ve drawn for them.)
Those who want something from you–a vote, a click, a share, a donation, etc–love making SCOTUS look like an extension of the left-right political warfare. Be wary when they try to scare you into giving them money.
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