Only eight Justices presently serve on the Supreme Court after the death of Justice Antonin Scalia left an empty seat on the bench in 2016. The power to nominate a Supreme Court Justice is vested in the president and appointments are made with the consent of the Senate. Given that the Senate is currently controlled by Republicans, it is likely that President Trump will have relative ease in ensuring the appointment of his desired Justice to the Supreme Court. President Trump is expected to reveal a nominee on Tuesday, Jan. 31, according to his most recent twitter activity.
The Judiciary Branch of our government is crucial to the protection of checks and balances, the maintenance of liberty through impartial interpretation of the Constitution, and judicial review of the Executive and Legislative branches. However, the ability for the Supreme Court to execute this function has become tainted by growing political polarization. Researchers Neal Devins and Lawrence Baum make this argument in their paper, Split Definitive: How Party Polarization Turned the Supreme Court Into a Partisan Court, claiming that the ideological gap between Supreme Court Justices is the largest it has ever been and that the Supreme Court itself is divided along strictly partisan lines. They assert that the divide between Democratic and Republican Supreme Court nominees continues to grow because “conditions today strongly favor appointments that reflect the parties’ ideological orientations.”
This has massive repercussions for the status of individual rights in our country, as the ninth Justice may have the influence to sway the Court ideologically left or right in deciding several cases that had previously resulted in 4-4 ties after Justice Scalia passed. President Trump has not been shy in promoting this outcome, claiming that whomever is appointed will serve to advance the President’s policy agenda regarding reproductive rights, healthcare, and immigration.
Devins and Baum show how the current Supreme Court has evolved into a partisan court by providing a background history. During the period prior to 1937, Supreme Court Justices rarely dissented and tended to issue unanimous full opinions to the court. According to Devins and Baum, this was in part due to the fact that “before the Judiciary Act of 1925…Justices typically saw their job more as resolving legal issue than expounding legal principles.” Only once during this period did all Justices appointed by a president vote with the president of that party. After 1937, analysts gauged partisanship and the Justice’s ideological positions over time using two measures: a raw vote score and the Martin-Quinn score. Scores of Justices serving on the bench reveal that the Court never divided along strictly partisan lines between 1937-2010. Throughout this period, it was not atypical to see Republican Justices that were ideologically to the left of some Democratic Justices, just as it was not uncommon for a Democratic Justice to be ideologically right of some Republican Justices.
Only after 2010 did the Court experience a sharp ideological division along party lines, the conditions for which had been developing long before through the appointment process. In the recent past, presidents have opted for nominees who share prevailing ideologies of their parties. This focus on ideology and as Devins and Baum articulated, “growing emphasis on policy considerations in the appointment process parallels growth in partisan polarization, and it is primarily the result of that polarization.”
Political polarization and the “ideological gap between Democrats and Republicans in political and economic elite groups began to grow at an exponential rate” in the 1980s. Current polarization in Congress is the result of the disappearance of the “moderate-to-liberal wing of the Republican party” following Ronald Reagan’s victory in 1980. Reagan’s administration pursued a conservative agenda and centrist voters were marginalized through redistricting. Party polarization at this level is part of larger trend of party polarization amongst political elites. Current elites “are at opposite ends of the spectrum – Democratic elites are more liberal than other Democrats; Republican elites are more conservative than other Republicans. The consequences of such elite polarization are profound, for Supreme Court Justices are elites, and, as such, are apt to reflect elite values.”
This polarization impacts Senate voting on Supreme Court nominees by increasing partisanship. Polarization has also driven Democrat and Republican elites to be more ideologically homogenous in nature. Such homogeneity only serves to reinforce a partisan divide. Increasing polarization and resulting homogeneity within political parties gives presidents “stronger incentives to choose nominees whose ideological orientations match those of the president’s own party.” The increasing ideological differences between Justices is exacerbated by the fact that “rival liberal and conservative social networks…enhance the president’s capacity to identify either liberal or conservative nominees…reducing the chances that [Justices] will stray over time from the ideological positions that brought them into the court.”
The Justices are not immune to polarization, as “more polarized social environments shape Justices’ thinking,” resulting in the promotion of “ideological stability, especially among Republican appointees to the Court.” Since Justices come from the elite class, and the elites are homogenous in ideology, polarization incentivizes Justices to “sign onto opinions consistent with elite norms.” It is this fact that leads Devins and Baum to conclude that the trend in party polarization will perpetuate the evolution of the Supreme Court into a partisan court. Polarization reinforces homogenous ideology, and thus incentives Justices to continue to act more decisively in their decisional behavior regarding the outcome of a case. This polarization prevents judges from doing their duty as legal scholars of interpreting the law to the best of their ability with no party bias.
The Supreme Court is the final judge in all cases involving laws of Congress, and the highest law of the land. The extent to which the Supreme Court has become a vehicle for advancing presidential policy serves to damage the integrity of individual rights and freedoms originally enumerated to American citizens in the Constitution. The Supreme Court has been forced into the status quo, manipulated for political agenda. It will take a while and a lot of work by dedicated politicians, but the deep partisan divide of the court must be addressed.