Kennedy’s retirement, coupled with the recent succession of conservative-leaning Supreme Court rulings, signaled a national and constitutional crisis for Democrats. The nomination of Brett Kavanaugh, with his sturdy Republican credentials and conservative legal record, has spurred ominous forecasts about the fate of salient social issues: abortion, gay rights, and affirmative action, to say the least. As the mainstream diagnosis goes, the Right has won the judicial branch after Gorsuch came onto the bench; the solid conservative majority on the bench is expected to become nearly unbreakable for decades. Gearing up for midterms, Democrats have vowed to do everything in their power to stop Kavanaugh’s confirmation.
The nation’s political landscape is reflected by the Democrat-Republican chasm in the reaction to Trump’s new pick, which emerges from disaggregating public opinion surveys following the nomination. Overall, the divide seems moderate, with 31 percent saying they worry that Kavanaugh would make the Supreme Court too conservative, 11 percent worrying that he would make the court not conservative enough, and 46 percent saying they don’t worry about this. Yet 53 percent of Democrats and Democratic leaners say they worry Kavanaugh would make the Supreme Court too conservative, in contrast to 63 percent of Republicans saying they don’t worry about Kavanaugh shifting the court’s ideology. In fact, more Republicans think he won’t make the Court conservative enough (17 percent) than that he would make the court too conservative (12 percent).
While Kavanaugh’s nomination signaled bad news for almost Democrats only, the issue at heart is universally relevant: the Supreme Court today is dichotomized in ways and to an extent that is unheard of in history. The near absence of cross-party voting, and the tendency to vote exclusively in ideological coalitions, suggest that the justices have emerged as proxy voices for their nominating presidents’ party. Given that at least two other justices are on the retirement watchlist, and the new nominees could serve for a lifetime, there must be imminent scrutiny into central problems that are eroding public trust in the Court.
Causes for Concern
In successive decisions preceding the 2018 summer recess, the Supreme Court has shown consistent support for a conservative agenda: it upheld the travel ban, blocked a law requiring “crisis pregnancy centers” to supply information about abortion, dealt a monumental blow to organized labor, and upheld legislative maps that had been called racially discriminatory. Most media coverage on these events have attributed the verdicts to Gorsuch’s appointment, which was enabled by Senate GOP leader Mitch McConnell’s move to block the appointment of Judge Merrick Garland in 2016 after the death of Antonin Scalia. Of course, what Democrats have viewed as undeserved judiciary victories, achieved through unprecedented sabotage by Republicans, have been hailed by Republicans as a triumph for the Constitution.
As these reactions show, members of both parties recognize that a new appointment to the Supreme Court has the highest political stakes today. The starkness of the conservative-liberal divide was also highlighted by extraordinarily scathing dissents, such as Sonia Sotomayor’s condemnation of the Muslim ban as “harrowing” and “motivated by hostility and animus toward the Muslim faith.” Public perception of the Court’s polarization has also grown significantly. For instance, in a recent Gallup poll a majority of the American people, 62 percent of Republicans and 71 percent of Democrats and independents, responded that the Supreme Court has become too partisan.
The Court’s Partisanship is Unprecedented
Modern-day partisanship is extraordinary in character as well as degree. For the first time in modern history, the ideological divide of the justices has come to mirror their political affiliations: the liberals are Democratic appointees and the conservatives were named by Republican presidents. This marks a contrast from decades before, when Republican appointees such as William Brennan, Harry Blackmun, and Earl Warren were among the most liberal justices. Obama’s two appointees, Justices Sonia Sotomayor and Elena Kagan, replaced the last two liberal Republicans, Justices David H. Souter and John Paul Stevens. In the 1994 term, Justice Stevens ranked as the most liberal member of the court, while Justice Souter fell further left than Democratic Justice Stephen Breyer. Likewise, it has been more than 50 years since a Democratic president last appointed a conservative-leaning justice, Byron R. White. Of course, an important caveat in this discussion is that the association of “liberal” and “conservative” with Democratic and Republican parties, respectively, have been fluid throughout history, and the terms denoted different values at various points in time.
Moreover, another metric suggests that the Court’s partisanship has now reached its peak: Since 1940, more than 16 percent of the Court’s rulings have been decided by narrow votes (5 to 3 or 5 to 4), and more than a fifth of all cases were decided by 5-4 rulings in the two most recent courts. In contrast, between the period between 1801 and 1940, less than 2 percent of all the Supreme Court’s decisions were decided by such margins. This high number of close decisions is noteworthy since scholars often consider these “minimum-winning coalitions” to be indicative of how political the decision-making is. Of course, it is important not to oversell the 14 percent, considering that 57 percent of decisions were unanimous in the same term. Since 2000, a unanimous decision has been more likely than any other result, and overwhelming majorities (7 to 2 or 8 to 1) judgments have made up about 15 percent of decisions.
Nonetheless, the polarization of the Roberts Court is still extraordinary, as reflected in not only the rising number of narrowly determined verdicts but also the uniform manner in which the justices voted in those cases. At least two-thirds of the Roberts Courts’ 5-4 rulings have split along ideological lines, with Justice Roberts agreeing with the three most conservative justices—Samuel Alito, Clarence Thomas and Antonin Scalia—in at least eight in 10 non-unanimous rulings. The number of 5-4 rulings per se may not mean much, but it signals clear bias if the justices consistently voted in their ideological blocs.
The Root of the Problem
One explanation for the politicization of the Supreme Court is that the two parties have begun assessing Court candidates years in advance, keeping track of their decisions in lower courts to ensure they are in line with the party’s goals. Past nominations depended more on legal ability or the desire to cater to religious or ethnic groups, repay political favors, or reward friends. Even when ideology was the main concern, the nominees often voted contrary to the presidents’ expectations.
Furthermore, such close scrutiny was likely influenced by growing voter expectation for the president to select a judge who will champion his or her party’s goals. The 2016 election embodied this trend, which Trump was acutely aware of during his campaign; in exit polling, more than a quarter of Trump voters, including many Republicans who viewed both Donald Trump and Hillary Clinton negatively, cited Supreme Court nominees as the most important factor in their vote. Nearly three-quarters of Trump voters overall said it was at least an important factor. Many Clinton voters said the same thing, although to a smaller percentage.
Another reason can be found in the justices’ hiring of law clerks. 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 left-wing judges have also increasingly surrounded themselves with clerks that strongly reflect their personal ideological views. Ginsburg, Kagan, and Sotomayor all hired clerks from previously Democratic chambers over two-thirds of the time. Bias in clerk selection is noteworthy because they play very large roles in deciding what cases the court hears, as well as in writing opinions and dissents.
At the same time, on the broadest level partisanship in the Court likely stems from the Congressional impasse in American politics, which has stunted legislative means of affecting change in society. Therefore, more people have turned to the Courts to decide on the most politically charged, monumental issues facing the nation. The responsibility for deciding on these topics has fallen squarely on the justices, who are now becoming closer to, as some have alleged, politicians clad in fine robes.
Small Attempts at Improving the Court
Given the failed politics at the heart of bitter confirmation battles, meaningful reform of the Supreme Court may remain indefinitely implausible. Regardless, it is worth seriously contemplating more realistic, albeit far from fundamental, remedies to the judicial debacle. For example, changing term limits to less than 20 years would be a promising start to lowering the political stakes of judiciary selection, and thus better insulate the process from Republican or Democratic agendas. A commonly suggested model is a system of eighteen-year terms for Supreme Court justices with a new judge appointed every two years, which would give each president in a term two vacancies to fill.
With lifetime appointments, a party in power for just a few years can control critical policy issues for decades after it left power. The current system has also created an unfair preference for younger appointees who would serve on the bench for longer, often at the expense of more experienced or otherwise more merited candidates. In contrast, under the new system parties would have less incentive to pick judges who are their staunch allies if they knew that any given Court would preside over policy for a much shorter time. Politicians would know they would have another opportunity to change the Court again soon enough, which could make Supreme Court appointments more quotidian and reduce congressional impasse in the process. In addition, term limits could better ensure that the justices are in touch with, and accurately reflective of, societal changes.
Another, much more politically feasible, idea is for the Senate to push for a return to the 60-vote threshold for Supreme Court nominees and establish a rule that both sides agree to move forward on any Supreme Court nominee for a seat vacated more than 90 days before an election. This would constitute a return to the way things were when Justices Alito, Roberts, and Ruth Bader Ginsburg were all nominated and confirmed. Polls show overwhelming voter support for a 60-vote minimum, but this policy could produce two different outcomes: it could either force the nomination of someone with widespread acceptance, advancing more middle-grounded candidates, or lead to more dysfunctional and costly governance.
To the extent that the law, or the interpretation of it, is the downstream of politics, there are few politically feasible, substantive remedies to the extreme partisanship of the Supreme Court. Yet if it is nearly impossible to transform the toxic political environment, then there must at least be efforts to prevent the contamination of the judicial branch. Hardly any public authority is more dangerous to the integrity of law than that of an unelected, lifetime appointee on the bench. The ultimate goal, of course, is to nudge each president to appoint disinterested interpreters of the Constitution, who are neither rigidly ideological nor biased along partisan lines. But with that prospect far out of reach, reducing the justices’ term limit may be the best step we could muster towards recovering the Court’s objectivity.