By Andrew B.
The New York Times headline during the recent Ketanji Brown Jackson Supreme Court confirmation hearings was: Confirmation Hearings, Once Focused on Law, Are Now Mired in Politics. MSNBC headlined an article Clarence Thomas is a Politician criticising his posing with a Republican senate candidate at the Supreme Court . During an oral argument last December, Justice Sotomayor asked the question in the context of overturning Roe vs Wade, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” While the Supreme Court has never been free from politics, never have so many questions been raised about whether the Justices are just politicians in robes rather than “the voice of reason, charged with . . . articulating and developing impersonal and durable principles.”
This essay will consider whether Justices cast their votes because of their personal political beliefs in furtherance of a political agenda, and thus essentially are just politicians in robes, instead of their critical role as a neutral final arbiter , as well as whether the Supreme Court has recently become more politically partisan. A Justice’s personal and political views matter because the Constitution is drafted in such a way that it is open to many interpretations. As Harvard Law Professor and leading constitutional law scholar Laurence Tribe observed, “If simply reading the Constitution the right way were all the Justices needed to do, the only qualification would be literacy, and the only tool a dictionary.”
Many Supreme Court Justices have denied and dismissed claims of any political bias, stating that their interpretation of the law is what decides their vote, not their political beliefs. Last year, Justice Breyer argued that it is jurisprudential differences rather than political ones that account for judicial disagreements. Justice Barrett made many of the same arguments last September when she stated: “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” and noted that “Judicial philosophies are not the same as political parties.” Chief Justice Roberts in his confirmation hearings famously declared that the role of a Justice was like a baseball umpire, merely to call balls and strikes . This analogy asserts his neutrality in these affairs, where just like a sports referee, Justices have to remain neutral and make calls based on the rules and their interpretation of them rather than based on which team they favour.
Justices are, of course, appointed by the President–typically in their 50s. There are many examples of Justices engaging in political careers either before or during their time on the Supreme Court. William Howard Taft was President, before becoming a Supreme Court Justice. John Jay, the first Chief Justice, ran for governor of New York twice whilst keeping his Supreme Court seat, eventually being elected as governor on his second attempt in 1795. In 1916, Charles Evans Hughes left the Supreme Court to run for President, narrowly losing and became Secretary of State instead, returning to the Supreme Court as Chief Justice in 1930. Abe Fortas was regularly in the Oval Office with LBJ and wrote some of his speeches . Three current Justices: Barrett, Roberts and Kavanaugh worked with the legal team that helped George W. Bush secure the Presidency over Al Gore in 2000, in perhaps the most questionable election in modern American history. Each of these and their colleagues bring a lifetime of political beliefs and involvement to the Court. The key question is whether their personal beliefs and/or political agenda has not merely influenced but determined their votes.
However, it seems almost naïve to deny there is a political bias in the Supreme Court, at least today. In the past, one could argue that there was less absolute political bias in the Justices’ votes, such as in 1935, when Justice Brandeis voted against Roosevelt’s initial New Deal legislation, much to Roosevelt’s surprise. Brandeis voted to block it as he felt that Roosevelt went too far in taking away property rights using the power of the executive and legislature despite Brandeis personally agreeing with the objectives of the New Deal Legislation. But as Erwin Chemerinsky writes, “it is nonsense” that today’s rulings by conservative Justices are not about their personal and political beliefs. Voting according to personal or political beliefs is not a new phenomenon, as it was always likely, for example, that Brandeis and McReynolds, would be typically on opposite sides, even though both had been nominated by Woodrow Wilson. Since the Kavanaugh confirmation, however, for the first time it seems that a Justice appointed by a Republican President will almost unquestionably vote one way, whilst a Justice appointed by a Democratic President will vote the opposite way. Gone are the days of “swing justices” whose votes were not preordained, despite the current Justices’ attempts to claim an unbiased evaluation of every case without a predetermined judgment. Instead, the Court has become more divided and extreme on both sides. Currently, every single Justice on the Supreme Court who was nominated by a Democrat is liberal on the Martin-Quinn score, whilst the opposite is true for those nominated by a Republican. In fact, no Justice nominated by a Democrat has leant even slightly Conservative since Justice White left the Supreme Court in 1993, whilst only two Justices nominated by a Republican president, Stevens and Souter, both now retired, have leant to the left since the death of Thurgood Marshall, meaning that there have been no examples where a Justice has leant consistently to an opposing side than the one they were nominated by since 2010. This contrasts with the historic trend where nearly every year since 1938, there had always been a liberal leaning Republican and a conservative leaning Democrat on the Court. Justice Thomas proclaimed in his confirmation hearings, “that he would have no agenda on the bench” . Yet he has been one of the most predictable justices in the history of the Supreme Court, and as The Economist noted, “Justice Thomas’ jurisprudence appears to amplify his politics” . This transformation of the Court to be more predictable from a partisan politics perspective has altered the cases it has chosen to hear. Only after Ruth Bader Ginsburg died and was replaced by the conservative Amy Coney Barrett, which resulted in the conservatives on the Supreme Court having a 6-3 majority, were certain conservative matters such as restricting abortions granted cert, as the predictable conservative majority gave these conservative Justices freedom to vote entirely politically, instead of having carefully to consider precedent and faithfully abiding by the constitution.
Voting by Justices to achieve a certain outcome from a political perspective has certainly been suspected on a number of occasions. Just after his second inauguration and after having had much of his New Deal legislation struck down by the Supreme Court, President Roosevelt accused the Court of acting not as a judicial body but as a policy making body and discussed his proposal to increase the size of the Court with the goal of having more liberal Justices who would support his New Deal. Twenty days later, the Court upheld the constitutionality of minimum wage legislation with Justice Owen Roberts having changed his vote from one in a similar case a few months earlier in a move that Abe Fortas referred to as “the switch in time that saved the nine.” Chief Justice Roberts must have been reflecting on the widely disparate strike zones used by umpires when he voted to uphold Obamacare using what has been called a “strained theory” which states that the mandate was valid under the taxing power with the purpose of “protect[ing] the Court’s public image.”
Despite the current Justices’ best attempts to appear neutral and apolitical, it is hard not to conclude that there is a political bias to their voting. The Supreme Court essentially has turned into a Republican vs Democratic Court, where decisions are not made because they are constitutionally correct but are motivated by their respective parties and political ideologies. To go back to Roberts’ baseball analogy, the modern Supreme Court is umpired by the players themselves rather than the traditional neutral referee that America needs in the current polarised state of politics. In response to the photo of Thomas with the Republican candidate, a Democratic Senator tweeted, “I think the court has crossed the rubicon.”