If you had any doubts about the politicization surrounding the U.S. Supreme Court, the reaction to reports that longtime liberal Justice Stephen Breyer is retiring should remove them.
On the far right, Sen. Josh Hawley of Missouri called on President Biden not to nominate a “woke activist,” saying that “If he chooses to nominate a left wing activist who will bless his campaign against parents, his abuse of the FBI, his refusal to enforce our immigration laws, and his lawless vaccine mandates, expect a major battle in the Senate.”
Like Hawley, GOP Rep. Lauren Boebert of Colorado did not bother to thank Breyer for his service, immediately going on the attack. “Joe Biden will try to appoint a radical leftist, she tweeted. “We need the Senate to stand strong for the Constitution.”
On the other side, since winning the 2020 election, many Democrats had pressured Breyer to retire well in advance of the midterm elections in November. They want to make sure that a liberal nominee will take his place, something that's only guaranteed while they control the White House and the Senate.
Hillary Clinton celebrated Breyer’s service, but couldn’t avoid politics by tweeting her thanks for “his admirable decision to retire now.”
Many on the left skipped thanking Breyer, jumping immediately to calling on Biden to fulfill his campaign promise to nominate a Black woman to replace him.
Some tweets, like that of Rep. Bobby Rush of Illinois, almost sounded like veiled threats: “Thrilled that @POTUS will have the chance to make good on his promise to nominate a Black woman to the Supreme Court.”
Are the Justices Themselves Politicized?
The answer to that question is a resounding yes, if you ask the American people.
According to a Grinnell College National Poll released on Oct. 20, 2021, 62% of adults surveyed said they thought Supreme Court decisions were based more on the political views of the justices than on the Constitution and the law. Only 30% believed the opposite.
That has led to weakening confidence in the court’s decisions. A Reuters-Ipsos poll released in April, 2021, found that only 49% of Americans have a “great deal” or a “fair amount” of confidence in Supreme Court rulings.
The court’s approval rating followed suit, dropping to 40%, a new 21st century low, according to a Gallup survey released in September, 2021.
Worse yet, a survey by the Annenberg Public Policy Center found that a new high of 34% of Americans would want to do away with the court altogether if it started making a lot of rulings that most Americans disagreed with.
Are Court Rulings Really Politicized?
From 2000 through the 2018 term, unanimous decisions were the most likely result, in 36% of all cases. Many of the other rulings were 7-2 or 8-1, with liberals joining conservatives and vice versa.
In fact, 5-4, 5-3 and 4-4 decisions only happened less than 35% of the time. In the 2016-2017 term, 56% of all decisions were unanimous. In the 2019 session, according to my calculations, more than 80% of cases were decided by 6-3 or larger majorities (and conservatives only held a 5-4 majority then, as opposed to the current 6-3).
That said, it’s fair to be concerned, because the tight decisions are often in the most significant cases, the ones where the court really exercises its power in ways that change American society and the way we live.
Politicization of the Nomination Process
As mentioned at the top of this article, politics are always involved in the nomination process, but never more than over the past few decades because of increasing political polarization in Washington and the growing power of the court itself.
The Founders may not have wanted the Supreme Court to be as influential as it now is. Article III of the Constitution simply states that “The judicial power of the United States shall be vested in one Supreme Court. Alexander Hamilton wrote in The Federalist Papers No. 78 that “The judiciary will always be the least dangerous branch to the political rights of the Constitution,” believing it would be above the political fray.
Instead, as political polarization has worsened in Washington leading to congressional gridlock, the Court’s outsized influence has grown along with the polarization over nominations for Supreme Court justices.
In fact, nominations for the court have triggered some of our most heated political debates. The confirmation of qualified justices has gone from a bipartisan sure thing, to all-out political warfare.
Senate records show that 29 years ago, liberal Ruth Bader Ginsburg was confirmed with a 96-3 vote. As recently as 2005, the Senate confirmed John Roberts as chief justice, 78-22.
Compare that to Brett Kavanaugh’s bare minimum 50-48 in 2018, and Amy Coney Barrett's 52-48. Or to Republicans not even allowing nomination hearings for Obama nominee Merrick Garland in 2016, supposedly because it was an election year, only to then rush to confirm Barrett barely a month before the 2020 election.
What Does the Future Hold?
In light of the polarization, Democrats keep pushing proposals to reform the Court, including an increase in the number of justices. FDR failed when he tried to do that in 1937 in order to obtain favorable rulings on New Deal legislation. Since then, court-packing had mostly been seen as a fringe idea.
It probably still is, unless Democrats continue to hold the White House and manage to win a large majority in the Senate. Changing the number of justices does not need a constitutional amendment because the Constitution doesn’t specify a number. It was only set at nine by the Judiciary Act of 1869.
Still, Democrats may want to learn from recent history. Harry Reid’s exercised the “nuclear option” to change the rules of the Senate to eliminate the need for Senate supermajorities to approve Obama-era nominees.
That came back to haunt them when the GOP retook control of the Senate. The rule change allowed Trump cabinet members to sail through over Democratic objections. And then the GOP extended the nuclear option to include Supreme Court nominees, allowing for the Gorsuch, Kavanaugh, and Barrett confirmations.
Sometimes institutions need change. Maybe it is the Supreme Court’s time. But overturning a century and a half of tradition that has mostly served this country well doesn’t seem like a smart idea, and it would likely make polarization even worse.
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Cover photo: Supreme Court Justice Stephen Breyer stands along with other justices as they wait for the casket containing the remains of former President George H.W. Bush to arrive at the U.S Capitol Rotunda on Dec. 03, 2018 in Washington, DC. (Brendan Smialowski/Getty Images)