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Neutral no more: Can the Supreme Court survive an era of extreme partisanship?

Why We Wrote This

With lawmakers increasingly unable or unwilling to tackle volatile issues, resolution is often left to the judicial branch. But forcing the Supreme Court to settle controversial political questions isn’t always ideal.

J. Scott Applewhite/AP
A view from the Supreme Court in Washington Aug. 15. Senate majority leader Mitch McConnell said he hopes to have Supreme Court nominee Brett Kavanaugh confirmed before the new court session begins Oct. 1.

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As President Trump’s Supreme Court nominee Brett Kavanaugh begins his Senate confirmation hearings next week, the court itself seems on the edge of becoming as ideological and polarized as the rest of America’s querulous political culture. The nomination and confirmation process is the most visible symbol of this. Today both parties, but particularly the GOP, run rigorous vetting programs to ensure the ideological bona fides of possible court picks, and nominees endure a harrowing Senate questioning process. The upshot is that the court’s seats are divided along a partisan basis. Understandably, Supreme Court justices have not been eager to be portrayed as political actors. Chief Justice John Roberts, at his 2005 nomination hearings, compared himself to a baseball umpire, calling balls and strikes. Yet a year later, he told an interviewer that he was worried about the steady march of polarized 5-to-4 court decisions. Now, if Judge Kavanaugh gets confirmed, the US may be in for a period when the court veers further to the right than the ideological position of a majority of US voters. That could last for a generation and affect abortion rights, gun rights, affirmative action, and other hot-button issues. This puts the court in a precarious position. If its conclusions veer too far outside the mainstream, the voter backlash could be severe, and the court’s own image and prestige might suffer. “I do think that the Supreme Court should be extremely cautious in taking sides on political questions,” says Manisha Sinha, a professor of American History at the University of Connecticut. Whenever possible, “those things should be settled by the ballot.”

On February 23, 1857, Supreme Court Justice Robert Cooper Grier (my multi-great granduncle) wrote President-elect James Buchanan one of the most infamous letters in the history of American jurisprudence.

In it, Justice Grier outlined for the incoming US chief executive the decision reached by the court in Dred Scott v. Sandford, a case in which an African-American slave had sued for his freedom on the grounds that he had lived for years in regions of the country where slavery was illegal.

Mr. Buchanan had been meddling in the case for some time. Via another justice who was a close friend, he was pushing for a broad decision that might legitimize slavery and, he thought, end the national uproar over the issue for good.

Grier was a key lobbying target. He was a Pennsylvanian and, like Buchanan, a Democrat. If Grier voted to deny Mr. Scott his freedom, the decision would appear less sectional, Buchanan thought. Grier agreed.

The February 23 letter let Buchanan know, in confidence, what the court would announce in early March, and how Grier and others would vote. It ended with a coda hinting at the writer’s understanding of its clandestine and explosive nature.

“We will not let any others of our brethren known any thing about the cause of our anxiety to produce this result, and though contrary to our usual practice, we have thought due to you to state to you in candor & confidence the real state of the matter,” Grier wrote.

Announced on March 6, 1857, the Dred Scott decision remains the Supreme Court’s most shameful hour. It held that black people of African descent could never be US citizens – and that the US government had no right to regulate slavery in federal territories.

It helped tear the country apart. Rather than rendering the slavery question a matter of settled law, Dred Scott infuriated Northern abolitionists, split the Democratic Party, emboldened Southern slave owners, and boosted the new Republican Party. Three years later, the Civil War began.

What does Dred Scott have to say about today’s Supreme Court decision-making? After all, its conclusions have been rejected, its reasoning repudiated, and it is no longer legal precedent of any kind.

But it is an extreme example of a judicial truism: the highest court in the US is, indeed, affected by politics. It is both a legal and political institution, and as such, the Supreme Court is sometimes asked to make national political decisions.

When other branches of government are deadlocked, or unwilling to address a controversial issue, justices sometimes get cases where established legal guidelines are of little help. Slavery was such an issue in the 1850s. Many of the tough policy questions of today – abortion, gerrymandering, money in politics, the Affordable Care Act – might, in their own way, qualify today.

Yet punting all the toughest issues up to the court can create problems of its own. If its conclusions veer too far outside the mainstream, the voter backlash can be severe and the court’s own image and prestige might suffer. It remains perhaps the most popular branch of the US government – 53 percent of Americans currently approve of the way it is doing its job, according to Gallup. But Chief Justice John Roberts in public appearances has worried about the fragility of this position and possible perceptions that the court is just another political entity. 

“When you have a volatile political question, I am not sure the Supreme Court is the best place to settle those questions,” says Manisha Sinha, a professor of American History at the University of Connecticut and an expert on the history of slavery, abolition, and the Civil War.

Kavanaugh hearings

As President Trump’s Supreme Court nominee Brett Kavanaugh begins his Senate confirmation hearings, the court itself seems on the edge of becoming as ideological and polarized as the rest of America’s querulous political culture.

The nomination and confirmation process may be the most visible symbol of this. Today both parties, but particularly the GOP, run rigorous vetting programs to ensure the ideological bona fides of possible court picks. Once chosen, the nominees endure a harrowing Senate questioning process.

Did this begin with the tough Democratic interrogation of Republican nominee Robert Bork in 1987, and his ultimate rejection by the Senate? Was it turbo-charged by GOP majority leader Mitch McConnell’s blockade of Democratic nominee Merrick Garland in 2016, who didn’t even get a Senate hearing?

Both sides have their grievances. The upshot is that the court’s seats are divided along a partisan basis, with the most liberal appointee of a Republican president sitting figuratively to the left of the most conservative Democratic appointee.

“The court is partisan in the sense that party identity and ideology are linked together,” says Neal Devins, a law professor at William & Mary and coauthor of the upcoming book “The Company They Keep: How Partisan Divisions Came to the Supreme Court.”

That wasn’t always the case, of course. Prior to the 1980s, justices had a way of evolving on the branch, migrating in their views one way or another. Thus, Chief Justice Earl Warren, appointed to the bench by Republican President Dwight Eisenhower in 1953, grew substantially more liberal over time. Justice Byron “Whizzer” White, appointed by Democrat John F. Kennedy in 1962, became more conservative.

This migration was in part a byproduct of the social and professional worlds in which the justices moved, according to Professor Devins. For much of the 20th century, those worlds were dominated by a center-left ideology, as represented in the big newspapers and television networks that largely controlled news. Washington was filled with officials who had attended elite, center-left schools. That meant the movement was more towards the left than the right.

“The drift, so to speak, was tied in to the fact that justices were tied to a center-left world. They were seeking approval by their communities,” says Devins.

Today, that social and political context looks very different. The rise of right-leaning media has provided conservatives with their own news environment. Conservative think tanks and legal societies and other professional groups have thrived in Washington since the days of Ronald Reagan. 

The communities that GOP-appointed justices inhabit are no longer ruled by liberal Georgetown cocktail parties and the evening news at six, making culturally induced drift less pronounced.

Already the Republican side of the court’s judicial split may be more ideological than its Democratic counterpart.

“The Democrats on the Supreme Court are not the most liberal ideological Democrats we have ever had,” says Devins. “But the Republicans may be the most conservative.” 

An uptick in 5-to-4 decisions

Understandably, Supreme Court nominees and Supreme Court justices throughout US history have not been eager to be portrayed as political actors. They prefer more neutral analogies. Chief Justice Roberts, at his 2005 nomination hearings, compared himself to a baseball umpire. “My job is to call balls and strikes and not pitch or bat,” he said.

Yet a year later, he told an interviewer that he was worried about the steady march of polarized 5-to-4 court decisions. Prior to 1940, less than two percent of court decisions were decided on a one-vote margin. Since then, the percentage has risen to around 16 percent. Since Mr. Trump’s first appointee, Neil Gorsuch, arrived at the court, it’s ticked up to around 20 percent.

Admittedly, that’s a crude measure of polarization. It doesn’t say which justices joined on which side, or account for the percentage of unanimous decisions, which is typically around 40 to 45 percent per term.

But 5-to-4 decisions are more likely to be overturned by later Supreme Court verdicts. They often involve contentious, high-profile cases, where the winning side may not be quite as confident in its position, or the losing side as resigned to its loss. Just look at the 2012 5-to-4 decision upholding the constitutionality of the Affordable Care Act, with the deciding vote cast by Justice Roberts himself. Democrats remain unsure Obamacare will survive. Republicans still talk about taking another stab at appeal.

In a famous 1957 journal article, the Yale political theorist Robert A. Dahl described the unique position the Supreme Court occupies in American governance. To call it just a legal institution, one that simply applies neutral principles of law to the facts of cases, actually underplays its significance, according to Professor Dahl.

“For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy,” he wrote.

The problem is that for many issues facing the high court, there is no clear precedent or statute bearing on the question before justices. The Constitution, on many matters, is at best unclear.

At that point, justices rely on their own values, beliefs, and priors to render judgments. What is that but a political decision?

“All political scientists and most lawyers accept this,” wrote Dahl drily in 1957.

Today, it remains the case that not all lawyers accept that formulation, let alone all Supreme Court justices. But members of the court are really a kind of hybrid – part politician, part government official. Yet unlike other politicians, they don’t have to run for reelection. Their appointments last for a lifetime.

Despite all this, the court retains legitimacy in the eyes of the public, says Eric J. Segall, a law professor at Georgia State University.

“They have more faith in the court than in Congress or the presidency. It’s kind of schizophrenic,” says Professor Segall, author of “Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges.”

But there’s something to be said for a third branch of government with a mantle of legitimacy that helps the nation handle its most divisive issues, Segall adds. Not that the court hasn’t veered off track. The Dred Scott decision was clearly out of bounds and inflamed a tragic, human issue instead of ending it. Some of the Warren court’s liberal rulings were clearly outside the national political consensus of the time, Segall says.

Now the US may be in for a period when the court veers further to the right than the ideological position of a majority of US voters. That could last for a generation, and affect abortion rights, gun rights, affirmative action, and other hot-button issues.

Maybe term limits for justices would be a way to help ensure voter satisfaction with the Supreme Court’s direction, Segall muses.

“The notion that we would staff our highest court based on death and strategic retirement is insane,” he says. “Every other country has rotation systems.”

A stain on the Court’s record 

The Dred Scott decision pleased rich slave owners in the South no end, but it destroyed the reputation of the Supreme Court in the north. The decision seemed so patently political, non-judicial in the extreme. In holding that Dred Scott had no rights as a citizen, and therefore no standing to sue, the decision simply ignored the legal precedents of hundreds of African-Americans who had sued for their freedom or for other reasons and had their cases accepted into the US court system.

“What one can say is that [the decision] basically adopted the most extreme pro-slavery interpretation of the Constitution,” says Professor Sinha of the University of Connecticut.

It was an extreme position on something that evoked extreme passions. That combination proved tragic. The Civil War probably would have occurred anyway. But Dred Scott remains a stain on the Supreme Court’s record.

Justice Grier, for his part, occasionally tops lists of the worst Supreme Court justices of all time. Despite his pro-slavery vote, he was a Union man who sat on the Court through the war, and wrote a key decision that legalized President Abraham Lincoln’s seizure of vessels bound for Confederate ports.

“I do think that the Supreme Court should be extremely cautious in taking sides on political questions,” says Sinha. Whenever possible, “those things should be settled by the ballot.”

Previous article in this series: A system under strain: Is US democracy showing real cracks?

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