The Troubling Partisanship of the Supreme Court
October 12th marked the beginning of the latest high-stakes Supreme Court term. Among other cases, the Court is expected to hear challenges to affirmative action in higher education, abortion rights, and the power of labor unions. These cases are sure to produce highly contentious oral arguments and hundreds of pages of briefs. However, the reality is that we can expect this Supreme Court to vote in predictable fashion. We will most likely see all the liberal justices (Breyer, Kagan, Sotomayor, and Ginsburg) vote as a bloc and the staunch conservatives (Scalia, Thomas, Roberts, and Alito) do the same. As per usual, Justice Kennedy will probably end up with the final say in these politically charged cases. Such a result is typical in the modern era of the court, but, historically, it is strange. Never before has a Court been as polarized as the Roberts Court is today. Such polarization poses a serious threat to the legitimacy of both the Court and, more importantly, the Constitution.
If we consider the number of cases decided by single vote majorities to be a fair proxy for a Court’s polarization, it becomes easy to see that our current Court is by and large the most partisan in years. In the period between 1801 and 1940, less than 2% of all the Supreme Court’s decisions were decided by a 5–4 vote. By contrast, the Rehnquist and Roberts Courts have seen just over 20% of their cases be decided by this small margin. This shift provides a clear indication that polarization has indeed spread to the judiciary.
Modern justices seem to often vote in ideological alignment with the party of the President that appointed them. This phenomenon is relatively new. In the past, the party of the appointing President did not predict a justice’s votes. Twentieth century justices Earl Warren, William Brennan, and Harry Blackmun all leaned liberal despite being appointed by Republican Presidents. Now, these types of justices have become extinct. In the 2014–2015 term, virtually every 5–4 decision the Court gave out was split perfectly along party lines. This, combined with the increase in 5–4 decisions, is an indicator of just how partisan the Supreme Court has become.
This increased partisanship has been attributed to a variety of causes, most notably the changing nature of judicial appointments and the types of clerks the Judges hire. As Adam Liptak, a Supreme Court Correspondent for the NY Times explains, the two parties have begun vetting Court candidates years in advance, closely watching their decisions in lower courts to ensure they are in line with the party’s goals. This increased partisanship of Supreme Court nominees is reflected by the most recent confirmation hearings. The 5 most senior judges on the Supreme Court only averaged 3 negative votes against them; however, the 4 newest members received an average of 33 negative votes.
The justices have also begun surrounding themselves with clerks that strongly reflect their personal ideological views. As Liptak notes, “the court’s current Republican appointees hired clerks who had first served for appeals court judges appointed by Republicans at least 83 percent of the time.” The numbers from Justices on the other side of the aisle are almost just as bad. Ginsburg, Kagan, and Sotomayor all hired clerks from previously Democratic chambers over ⅔ of the time. Because clerks play very large roles in deciding what cases the court hears and in writing opinions and dissents, this change has most likely contributed to the new increased partisanship. While both factors have some explanatory power, I would argue that there’s something deeper, namely the growing ineffectiveness of Congress, that not only further contributes to partisanship, but also magnifies the effects of these other causes.
Extreme party polarization has infected all realms of American government, most notably Congress. It’s no secret that Congress has grown to be a largely ineffective body as a result of increased partisanship, but this dysfunction has had a significant ripple effect. Generally, when individuals want to see change enacted, they will lobby members of Congress in the hopes of spurring some legislative remedy. However, this course of action is now blocked by Congressional gridlock. As a result, more people have turned to the Courts to try to get change enacted. Recently, it seems as if the largest, most politically charged issues facing the nation have been decided by the Supreme Court. For the past 15 years, the Court has been the only branch of government to meaningfully address issues involving same-sex marriage, affirmative action, campaign finance, and labor unions. For these type of issues, there arguably does not exist a real objective, non-partisan approach, forcing the Justices to involve themselves in these polarizing battles. In the 20th century and even the 19th century, legislation passed at the federal level was the vehicle for impactful change, but partisanship has stopped that trend. Instead, the Court has been forced to deal with these highly political issues that only further exploit and expose its partisan divide.
The unfortunate truth is that such polarization will have dire consequences for the Court if it persists. Primarily, it raises questions about the legitimacy of the Court as the supposed “apolitical” branch of the government. If the justices remain this polarized, how can we possibly separate Constitutional law from normal politics? The framers of the Constitution intended the Court to be insulated from the chaotic politics that the consume the executive and legislative branches of government. This separation creates public respect for the Court as an authority on the Constitution and a body that can legitimately have the “final say” on some issues. Such respect is crucial, because, in the end, the Court has no real ability to enforce its decisions. It must rely on the executive to carry out its orders, and the legislature to acknowledge its supremacy. Faith in the Court is thus indispensable. Unfortunately, as a recent Gallup poll shows, that faith is on the decline. The amount of Americans who have have a “great deal” or “fair amount” of faith in the Court is at an all time low. Chief Justice Roberts himself has noted, “the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” As long as partisanship remains, public approval will only continue to drop, further damaging the Court’s reputation and belittling its authority.
Constitutional law itself also faces a serious threat in partisanship. Although our interpretation of the Constitution has largely evolved and changed over time, one of the main purposes of the document is to provide some sort of constancy to our society. However, if this sort of partisanship continues, the Court’s “interpretation” of the Constitution will simply be based on which party has a majority of Justices presiding at a given time. This, in turn, jeopardizes the idea of precedent. Normally when the Court is presented with an issue on which the Supreme Court has previously ruled, it is expected to respect that prior Court’s decision (absent compelling evidence suggesting the decision should be reversed).
Yet, now we’re confronted with a situation in which overturning precedents could become the norm. Presidential hopefuls Hillary Clinton and Bernie Sanders have both stated that, if elected, they would appoint justices committed to overturning Citizens United. The merits of that particular decision aside, we cannot have a Court that continuously goes back on decisions it made just a couple years earlier. Such a regime would be confusing for lawmakers and would delegitimize the Constitution as an authoritative document. One of the distinguishing factors of Constitutional law, when compared to regular statutory law, is that it is much harder to change. However, if the Court constantly alters its interpretation of the Constitution then Constitutional law becomes more and more like the normal laws politicians deal with on a day to day basis, potentially causing some to question the importance of the document. Again, Roberts shares this same concern, stating in a 2006 interview that “the rule of law is threatened by a steady term after term after term focus on 5–4 decisions.”
Significantly, the composition of the Court could be greatly altered in the next 4 years. Of the current 9 Supreme Court justices, 4 will be over 77 years old by the time the next President is inaugurated. According to a 2006 study done by the Harvard Law Journal, the average retirement age for Supreme Court justices is 78.7. Therefore, it’s logical to assume that at least one, if not two justices may indeed choose to retire within the next 4 years. Depending on who retires, whoever is elected President in 2016 could potentially establish a significant conservative or liberal coalition within the Court, thus dictating the kinds of decisions we can expect to see for the next 10 years.
While all this may be concerning, it’s not really news. Party polarization is infecting all parts of American government and this is but one example of the kind of trouble it can cause. Until we somehow find a way to fix polarization, perhaps starting by changing the rhetoric we use when discussing our political opponents, it will only continue to cause harm at all levels of the American political system.