The topic of the week, thanks to The New York Times and the Supreme Court's lack of output this week, is the partisan polarization of the U.S. Supreme Court.
Republican appointees are voting conservatively, Democratic appointees are voting liberally, and my goodness, it's all just a little too predictable.
Case in point: five Republican appointees voted in favor of the Republican National Committee in last month's campaign finance decision. #conspiracy
Adam Liptak's article for the Times argues that the perception of partisanship "may do lasting damage to its prestige and authority and to Americans' faith in the rule of law." Assuming such a polarization really exists, how did we get there? And what effect is it having?
Liptak notes that current appointments are based on ideology (which leads to a divided partisan court), rather than past reasons (legal ability, political favors, and catering to religious or ethnic groups), which is supposed to be a bad thing.
Is it really?
Fifty years ago, you'd have to dig though paper books to find old cases, interrogate former colleges to pin down ideology, and even then, you were probably missing the needle in a haystack, located somewhere in Kansas. Today? A few clicks and you have a nominee's entire jurisprudence, controversial legislative voting record, articles they've written, and other red flags. It's a more perfect screening system that eliminates the surprises of the past -- the Warrens, Brennans, Blackmuns, and Souters.
Besides, do we really want to go back to the old days of surprises and favors, which produced some pretty terrible minds, ones that make today's justices look absolutely brilliant in comparison?
Damage to Perception
The article also argues that the perception of partisanship is damaging the public's faith in the courts. We've all seen the headlines too -- an all-time low approval rating for the Court by multiple measures.
Gallup puts the Court's most recent approval rating at a mere 46 percent, the second-lowest it's ever been (behind June 2005). The problem? The poll began in 2000. We'd bet there were large swaths of unhappy Americans when the Court made other controversial decisions, such as Brown v. Board of Education, Roe v. Wade, Korematsu v. United States or Dredd Scott v. Sanford. (Impeach Warren, anyone?)
One might also consult Pew Research Center's poll, which dates back to 1985. It shows a slightly rebounding favorability rating of 56 percent, a bit better than a few years ago, and a bit worse than 1985's 64 percent. Oddly enough, the Republican appointee-dominated Roberts Court is viewed more favorably by Democrats (63 percent) than Republicans (54 percent).
One more fun statistic: the public is evenly divided in their perception of the court's leanings: 53 percent say "middle of the road," 31 percent call it "liberal," and 25 percent call it "conservative."
Is There a Problem?
We could question the basic assertion -- that the Court is polarized. It's four conservatives, four liberals, and one swing vote -- that is two-thirds conservative. And while the campaign finance case split along ideological and partisan lines, as have many other cases, there have been plenty of odd splits, especially in Fourth Amendment disputes, that buck the overall trend.
Every Court in history had it's quirks, however. The Warren Court was perceived as liberal and activist. The Vinson Court of the 1940s was apparently very deferential.
This Roberts Court? We've looked at the court's actual leanings against popular perception: it's slightly more conservative than the Burger and Rehnquist courts (though not abnormally so), it's the least activist court since the 1940s when it comes to overturning legislation and respecting stare decisis, and it's very pro-business.
And when Ginsburg, Scalia, Kennedy, and Breyer (the four oldest justices) step down? The next Roberts Court will barely resemble the current iteration.
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- Next Wave of SCOTUS Justices? Plus, a Red-Light Cert. Petition (FindLaw's U.S. Supreme Court Blog)