by Amanda Frost
Common sense tells us that increased political polarization affects the U.S. Supreme Court as well as the political branches, and now legal scholars have the data to prove it. In a forthcoming paper, “Polarization and the Judiciary,” Richard Hasen surveys the academic literature on the subject, and then draws some conclusions of his own. As Hasen explains, the research shows that polarization influences the appointment and confirmation process, along with the cases the court accepts and how it decides them, as well as the public’s perception of the court and its decisions. Although polarization has many negative consequences for the courts, it also empowers them: When the political branches are gridlocked, the courts, and ultimately the Supreme Court, have the last word on contentious policy questions such as immigration, limits on executive power and access to abortion.
Polarization’s effect on judicial selection is clear. As Hasen explains, recent academic research demonstrates that both Republican and Democratic presidents have increasingly focused on ideology when selecting justices for the court. Both parties now also rely on outside interest groups to assist in selecting ideologically appropriate jurists. As of November 2017, 17 of President Donald Trump’s 18 federal appeals court nominees had connections to the Federalist Society, and the Federalist Society has screened lists of potential Supreme Court nominees.
The Senate’s role has also evolved in response to political polarization. Conservative Justice Antonin Scalia was confirmed by a vote of 98-0 in 1986, and liberal Justice Ruth Bader Ginsburg by a vote of 96-3 in 1993. In these instances, many senators from the party opposing the president’s voted to confirm his nominee. Indeed, the filibuster rules then in place required that at least a few do so for the nominee to be confirmed — tempering the president’s choice of a candidate from the outset. Confirmation votes have steadily grown closer over the last 20 years: The vote to seat Justice Samuel Alito was 85-41 in 2005, and Justice Elena Kagan’s was 63-37 in 2010. Now, with the abolition of the filibuster and the increased focus on ideology, Senate confirmation votes almost perfectly track party lines, as the confirmations of both Justices Neil Gorsuch (54-45) and Brett Kavanaugh (50-48) demonstrate.
Polarization has also affected the Supreme Court’s case selection and decisions, and Hasen summarizes a number of studies that illustrate this phenomenon. Twenty years ago, the justices’ positions on the legal questions before them did not always align with the preferences of the political party of the president who appointed them. So, for example, Justice Byron White, who was appointed by Democratic President John F. Kennedy, voted against abortion rights, while Justice John Paul Stevens, appointed by Republican President Gerald R. Ford, voted in favor. As Hasen notes, today “[j]ustices are more likely to be ideologically in line with the interests of their nominating president’s party and less likely to drift ideologically (or ‘evolve’).” The result is a higher percentage of 5-4 decisions over the last few decades, particularly in cases involving high-salience political issues, such as abortion, gun rights and same sex marriage. (There is also a higher percentage of unanimous decisions, but that reinforces the point, because those decisions tend to involve technical legal questions that do not divide the political parties.)
Hasen’s article reviews the recent academic literature on how and why ideology affects the justices, which can be more nuanced than simply correlating the justices’ votes with the party of the president who appointed them. He cites Lawrence Baum’s 2017 book, “Ideology in the Supreme Court,” which argues that it is “likely that identification as a conservative or liberal is a significant element in the social identities of many and perhaps most justices,” influencing their voting. Baum posits that this social identification is further deepened by the politically polarized lawyers who now regularly appear before the court. It seems that polarization has affected every aspect of the judicial process.
Indeed, polarization has even transformed oral argument. Hasen references a forthcoming article by Tonja Jacobi and Matthew Sag analyzing 55 years of oral arguments and concluding that today the “justices are behaving like advocates,” not jurists. Through empirical evidence and anecdotal examples, Jacobi and Sag show that the justices no longer use oral argument primarily to gather information, but rather to argue in favor of the position they support. As compared to the past, justices today are more likely to make comments than ask questions, direct their comments to the counsel with whom they disagree and their questions to the counsel whom they support, intervene to “rescue” counsel whose position they support, and direct comments and questions to their colleagues rather than the lawyers before them. Jacobi and Sag found that the shift in the justices’ approach to oral argument began in 1995, which they attribute to the increase in political polarization that has occurred over the last 20 years.
One illuminating example of this behavior came last year in the oral argument in Gill v. Whitford, a partisan-gerrymandering challenge to Wisconsin’s state legislative maps. Alito began by asking the challengers’ attorney, Paul Smith, if he could “say something,” before quickly correcting himself to note that he wanted to “ask something.” Alito then spoke for two and a half minutes about his views on the case, after which Smith boldly asked, “Is there a question there, Your Honor?” Jacobi and Sag provide examples of similar behavior from Justice Sonia Sotomayor and several other justices.
Finally, and not surprisingly, studies show that polarization has affected the public’s perception of the Supreme Court. Although approval of the court has generally been higher than that of other branches of the government, that number has fallen in recent years. A Gallup poll showed that public approval fell from 62 percent in 2001 to 49 percent in 2017. Hasen quotes from a 2017 article by Sofi Sinozich, which surveys the data and concludes, “Americans today … see decisions as political events and see the justices as political (that is, self-interested and strategic) actors.”
And yet, even as political polarization undermines the public’s perception of the Supreme Court, it increases the court’s power in the political system. Hasen cites recent studies showing that Congress today is far less likely to override the Supreme Court’s decisions about the meaning of its statutes than it did in the past — likely because Congress is unable to act. As Hasen explains, “[g]ridlock due to partisan competition in the political branches creates space for the courts (especially the Supreme Court) to move the law toward their preferences without provoking a political counterreaction.” For better or worse, in this politically polarized moment, it is now the court rather than Congress that often has the last word.