Everybody is two-faced about the Supreme Court.
First, they fuss about the court having become a venue for politics. This was the position Justice Sonia Sotomayor took last month. Someone who votes reliably with the minority of justices who were appointed by Democratic presidents, she received a chorus of hallelujahs from her comrades when she worried aloud during oral arguments in an abortion case that if the court did not decide her way in the case, the institution might not “survive the stench that this creates in the public perception that the Constitution and its reading are just political acts.”
The same people who hallelujahed Sotomayor last month have done a 180 this week. With Justice Stephen Breyer abdicating from the court, they’re urging the president to appoint a hardcore Democratic partisan to the court, the harder the better. It’s hypocritical to condemn politics on the court and simultaneously insist on partisan nominees, but Democrats aren’t the only ones who swing this way. At her swearing-in ceremony last year, Justice Amy Coney Barrett promised that she would separate her political preferences from her judicial rulings. But if a Republican resided in the White House, you know what sort of nominee Barrett would be plugging for on the sidelines.
Justice, as we’re frequently told, is supposed to be blind. But court seats have never been filled by blind picks. “A judge is a lawyer who is a politician who has a friend,” Judge Paul Leahy once told his then-clerk Floyd Abrams, piercing his way to the truth. Liberal presidents pick liberal nominees and conservative presidents pick conservative ones. It’s built into the system. Filling the Supreme Court with partisan nominees is one of the reasons parties campaign so hard to win the presidency!
After almost two centuries of decrying partisan courts, why can’t we accept the Supreme Court has always been and always will be a political playground? “Partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments,” writes historian Rachel Shelden of the 19th-century court. “Most nominees had served in federal, state or local political positions,” she continues. Back then, Senate majorities often declined to confirm or even consider nominations by presidents from the opposing party on political principle. In 1800, the lame-duck Congress of Federalists went so far as to delete one seat from the Supreme Court to block President Thomas Jefferson, who was from an opposing party, from filling an opening. As everybody knows, in the early 1930s, President Franklin D. Roosevelt affirmed the political nature of the Supreme Court by attempting to recast its majority by expanding the court (“court-packing”). Some of today’s liberals, displeased by the Republicans’ 6-3 dominance of the court, want President Joe Biden to pack the court.
If he wanted to, Biden could reverse the age-old politicization of the court by nominating a hybrid Democrat-Republican legal mind. But first he would have to find one. You don’t find Supreme Court justices at the Schwab’s soda fountain. Most Supreme Court justices come up through partisan politics. John Roberts worked for Presidents Ronald Reagan and George H.W. Bush. Elena Kagan was a President Bill Clinton hand. Neil Gorsuch and Brett Kavanaugh labored for President George W. Bush. The striving begins in law school, where young aspirants find politically connected legal mentors and join organizations like the Federalist Society, where future Republican Supreme Court justices are groomed. The big sort goes on as aspirants campaign for clerkships and then judgeships, join politically connected law firms and make themselves known to power brokers they hope will someday help them reach the high court.
Instead of depoliticizing the court with his first pick, Biden has repoliticized it. During the 2020 campaign, he promised to put a Black woman on the Supreme Court in order to win an essential endorsement from South Carolina Democratic Rep. Jim Clyburn. Reagan did a similar thing in 1980, when he promised to appoint a woman to the Supreme Court — which he did. Expanding the menu of potential justices from white men has been a good thing, of course. But making it a campaign promise amplifies the political character of appointments.
Evidence of the Supreme Court political predispositions comes several times a session as the justices vote in predictable, party-line fashion. Even so, the justices still like to tout their strict impartiality of the court and their allegiance to the rule of law. Remember Chief Justice John Roberts’ insistence at his confirmation hearing that his job would be “to call balls and strikes, and not to pitch or bat”? Not everybody bought that explanation of the job. Justice Sotomayor later quipped, in a way that undermines her fretting about the stench of politics invading the court, that “different umpires have different strike zones.” If we interpret the justices’ different strike zones to be another way to acknowledge political differences, Sotomayor seems to be saying many court decisions rest on a bedrock of politics.
We obsess about the modern court for the same reason we obsess about the presidency. During the past century, both institutions have acquired more power at the expense of Congress. Issues that were once a matter of congressional debate and legislation now get commandeered by the president or kicked over to the Supreme Court. With the court amassing more power, it has become the target of more scrutiny. And that’s a good thing. We have every right to judge the justices. Clarence Thomas, Barrett and Breyer have all recently denied that politics play a primary role at the court. (Sure, and there’s no gambling happening at the casino, either.) Barrett’s effort — “Judicial philosophies are not the same as political parties,” she said — convinced nobody because if judicial philosophies are not the same as political parties, then why do their rulings track so closely with the positions of the parties whence they came?
The public sees through this rhetorical fog. In a recent Marquette Law School poll, 54 percent of respondents described the Supreme Court as “conservative,” a percentage that rose over the past couple of years Donald Trump built his 6-3 conservative majority. If the public regards the court as partisan, what’s keeping the smart men and women on the court from doing the same?
When you attend oral arguments at the Supreme Court, the first thing you notice is how lifelike the justices are. They’re human beings, not gods, even if they do work in a temple. Send your case to [email protected]. My email alerts want cameras to record oral arguments. My Twitter feed liked it better when the court met in the Capitol. My RSS feed writes dissenting opinions only.