Recent attacks on the integrity and legitimacy of Supreme Court justices undermine the ability of the judiciary to function effectively. In addition to being dangerous, such attacks are disingenuous and wrong. Splits among the justices reflect contrasting judicial philosophies rather than politics. Criticism that the justices are “political hacks” is agenda-driven demagoguery designed to achieve judicial outcomes more to the liking of the critics. At its core, the critics’ real message is that it’s fine for the justices to be partisan hacks as long as they are our kind of partisan hacks.
Accusations that Supreme Court justices are politicians in robes masquerading as objective interpreters of the law have intensified recently. Among the many critics, one pundit went so far as to assert that the justices are “partisan hacks.” Another warned that the Court faces a “crisis of legitimacy.” Some critics point to a recent Gallup poll that showed decreased public confidence in the Court.
What to make of these accusations?
For starters, it’s clear the critics are motivated by political agendas rather than genuine concern for the well-being of the judiciary. Almost all the current attacks come from the political left. So-called “conservative” justices now dominate the Court. Liberal critics see this as a threat to many priorities they have achieved or seek to achieve through litigation, including the ultimate prize, Roe v. Wade. In response, they want to restructure the Court through court-packing or other means in order to shift its ideological balance to the left. These initiatives would destroy the Court’s independence and are probably too radical to enact. At a minimum, however, the critics seek to intimidate the justices and influence their rulings through such efforts and even more direct threats. (See here and here.)
Concerns that political polarization is undermining public confidence in the Court are overblown. This year’s Gallup poll shows a decline to 49 percent in public “approval” of the Supreme Court. However, polling results ebb and flow considerably from year to year, likely driven primarily by reactions to a few headline-grabbing decisions. (Last year the Court’s public approval stood at 59 percent.) The latest polling numbers probably also reflect general declining public trust in American institutions. Notably, the Supreme Court still ranks much higher in public esteem than its critics in Congress and the media. In any event, unlike the political branches, the Court is not (and should not be) engaged in popularity contests. Its decisions are supposed to align with the law rather than public opinion.
The differences between Republican-appointed “conservative” justices and Democratic-appointed “liberals” stem mainly from contrasting judicial philosophies, not politics. The critics are right that Republican-appointed justices and Democratic appointees vote differently in many cases, although the differences are exaggerated. The critics are wrong, however, in attributing these differences to politics.
Statistics from the Supreme Court’s most recent term show only ten “polarized” decisions in which all Republican appointees were on one side and all Democratic appointees on the other. In fact, no two justices disagree more than half the time. Nevertheless, voting patterns do show significant splits. The votes of the three Democratic appointees aligned 88 to 93 percent of the time. Likewise, the six Republican appointees agreed most of the time although there was more variation among them. If politics does not explain these voting patterns, what does?
The answer is contrasting approaches to judging. There are distinct judicial philosophies and methodologies that divide so-called “conservative” judges from their so-called “liberal” colleagues. At the risk of considerable oversimplification, conservative judges usually favor “originalism” and “textualism” in interpreting the Constitution and federal statutes. These methods focus on the language of the law and attempt to adhere closely to its generally understood meaning. Originalists are reluctant to “find” new constitutional rights that are not mentioned in its text. At his confirmation hearing, Chief Justice Roberts famously compared the role of a judge to that of an umpire whose limited function is not to make the rules but rather to ensure that everyone plays by them.
Liberal judges, on the other hand, tend to prefer more free-wheeling approaches, sometimes referred to as “purposivism” and “living constitutionalism,” that consider a wide range of external factors in interpreting statutes and the Constitution. They are more likely to view the Constitution’s meaning as evolving to adapt to contemporary values and mores. In this regard, former President Obama expressed his preference for judges “who understan[d] that justice isn’t about some abstract legal theory or footnote in a casebook” but is “also about how our laws affect the daily realities of people’s lives.”
The Court’s recent (preliminary) decision in Whole Woman’s Health v. Jackson, which declined to stop a bizarre Texas antiabortion law from taking effect, is a prime target of the Court’s critics and a good illustration of these contrasting judicial approaches. The Texas law prohibits abortions that are constitutionally protected under current Supreme Court precedent (and it will no doubt eventually be declared unconstitutional unless the precedent changes). However, for various technical reasons it was designed to forestall judicial review until someone actually performed a prohibited abortion. In the meantime, the law has a chilling effect on women seeking abortions to which they are now constitutionally entitled.
Five conservative justices concluded that the Court lacked a legal basis to block the law’s enforcement at a preliminary stage since none of the named defendants had acted under it or planned to do so. Their conclusion is quite supportable legally; the Court has no authority to declare a law unconstitutional in the absence of a real case or controversy. But it leaves in effect, temporarily, an unconstitutional law that has immediate impact. This was too much for the three liberal justices, who strongly dissented. Apparently sharing the New York Time’s contempt for the majority’s reliance on “bloodless legal technicalities,” they were determined to somehow prevent Texas from getting away with its attempted evasion of judicial review. (Chief Justice Roberts hedged, conceding that the arguments against judicial intervention at this stage “may be correct” but still siding with the dissenters.)
The merits of conservative versus liberal judging are vigorously debated in concept and as applied to specific cases. However, both approaches are within the mainstream of contemporary legal thought and neither necessarily leads to conservative/Republican or liberal/Democratic political results. (See here for an example of a politically liberal outcome flowing from an originalist analysis.) Indeed, Republican-appointed justices provided the decisive votes rejecting three challenges to Obamacare and achieving a major victory for LGBTQ rights. Additionally, Republican-appointed justices as well as many Republican-appointed lower court judges consistently rejected Donald Trump’s various legal challenges to his 2020 election loss. These are hardly outcomes one would expect from political operatives disguised as jurists
While the justices are not political partisans, those appointing them are and they do the justices a grave disservice. Presidents who nominate federal jurists and senators who confirm them have definite preferences in terms of judicial philosophies. Republicans favor conservative “strict constructionists” who aspire to apply the law as written and leave lawmaking to the elected representatives of the people. Democrats favor judges who take a broader approach and more readily apply their own sense of justice. While the political system once accommodated the contrasting judicial approaches fairly well, it has now run completely off the rails.
Presidents of both parties have long nominated justices whose ideology aligned with their political preferences. The Senate traditionally afforded presidents considerable deference regarding their nominees. It usually confirmed nominees on a bipartisan basis regardless of their ideology as long as they were considered to be within the legal mainstream and qualified intellectually and ethically. It was considered inappropriate to apply “litmus tests” to judicial nominees concerning how they would vote in specific cases. Under this regime, the Senate overwhelmingly confirmed justices as ideologically disparate as Ginsburg (96-3) and Scalia (98-0).
Times have changed dramatically, and not for the better. Over the past few decades both political parties thoroughly and shamelessly politicized the appointment process. While most Republicans and Democrats still pay lip service to the ideal of an independent and nonpartisan federal judiciary, both are equally guilty of reducing the appointment process to a hyper-partisan farce in which litmus tests, demagoguery, and personal attacks abound and the substantive qualifications of the nominees are essentially irrelevant. This is particularly true of Supreme Court nominees.
In this environment, it is easy to fall for the notion that justices are mere political pawns since politicians in both parties act as if this were the reality. Politicians on the left and their allies are now taking things to a new (low) level with their court-packing and similar schemes. No doubt politicians on the right and their allies would do the same if liberal justices dominated the Court.
All of this constitutes a dangerous and even existential threat to the Court. The ability of the judiciary to carry out its constitutional functions depends on public confidence that judges are unbiased and independent of the political branches. Doubts about judicial independence and objectivity are particularly worrisome as the judiciary has been forced in recent decades to assume an outsized role in our national affairs far beyond that contemplated by the framers of the Constitution. Ironically, this is due largely to the failure of the political branches to fulfill their constitutional responsibilities. Congress has largely abdicated its legislative functions and presidents frequently exceed their executive authority in filling the void left by Congress.
The best and perhaps only hope at this point is to restore some semblance of bipartisanship to judicial appointments and confirmations before politicians succeed in robbing the judiciary of its credibility. Sadly, it’s hard to see this happening as our politics descend further into the hyper-partisan, polarized abyss.