The Supreme Court is a Partisan Institution

Supreme Court nominee Judge Amy Coney Barrett is sworn into her Senate Judiciary Committee confirmation hearing on Capitol Hill on Oct. 12, 2020 in Washington, D.C. Source.

Last week’s Senate hearings for the Supreme Court appointment of Judge Amy Coney Barrett have re-ignited the contentious debate on the role of the Supreme Court in contemporary American politics. The nominee has tried to cement herself as an impartial figure throughout the hearings. When pressed by Senator Dian Feinstein about her views on abortion, for example, Barret responded “if I express a view on a precedent one way or another, whether I say I love it or I hate it, it signals to litigants that I might tilt one way or another on a pending case.” This interaction highlights a pair of key questions when it comes to the Supreme Court: how much does individual political ideology influence Supreme Court justices and is the Supreme Court actually nonpartisan?

The famous Greek philosopher Aristotle once said that “man is a political animal.” This claim - gendered though it is - pertains to humanity’s desire to live within a system rather than in isolation. The venerated individuals of the judicial branch are no different. Although the nine Supreme Court justices may not be politicians, they are actors in our political system and make interpretive decisions regarding the law and constitutions. These interpretations must, at least in part, stem from differences in political ideology. According to the Kellogg School, political scientists have known since the 1940s that the ideology of a judge—whether conservative or liberal—often predicts which way he or she will vote. 

The Supreme Court is charged with interpreting the Constitution and is meant to do so in a nonpartisan manner. Each Supreme Court justice would claim themselves to be first and foremost a legal expert, without regard for the President that appointed them or any previous political leanings. However, researchers have found that the effect of a justice’s ideology on how he or she votes essentially doubles when the vote is pivotal. Furthermore, it was found that swing voters (in cases that were decided 5-4) were more ideological in non-ambiguous cases than in ambiguous cases. These findings directly contradict the Supreme Court’s non-partisan image.

Each branch of the government, including the Supreme Court, is political and serves a certain group of constituents through their own means. The executive branch serves the entire nation through the executive actions placed upon them in the Constitution, legislators serve their own districts and states through passing laws and oversight in the Senate and House, and the Supreme Court interprets and defends the Constitution through solving legal disputes. The Supreme Court is the only branch that does not have direct affiliation with a party, as no one will “win” the SCOTUS this November. Yet, this does not mean the court is apolitical. Political ideology has always played a role in the decisions that the court makes, and this is not inherently bad. The executive chooses legal minds that, in most cases, act rationally and in step with the party that has picked them. 

The problems arise when the Supreme Court is treated as a contest or game to be won, the way the other two branches are. Many arenas of policy are dependent on the 2020 election, including public health, climate change, and civil rights. We, as a society, have accepted that these issues are on the ballot when voting for Congress or the White House, but have refused to accept that abortion, human rights, or other issues are going to be impacted by a Supreme Court nominee. Decisions about all of these controversial topics are going to be made by the court in the next decade and it is wrong that legal issues are being politicized. The court is full of political actors who try their best to remain nonpartisan, doing a good job of it when the decisions might not impact the outcome of the case. 

The job of the Supreme Court is inherently conservative, as it is to maintain a two and a half century old document. Combined with the politics of the Court, the scope of power given to justices, especially with regard to precedent, should be carefully watched. Politics should be left to those who have been elected to be politicians and the interpretation of these laws should be made as stringent as possible.