Example cases forces one to wonder:
-2021: SCOTUS won’t block Texas anti-abortion law. 5-4 decision with all 3 Democrat-appointed Justices on one side and 5 Republican-appointed Justices on the other. (Supreme Court Chief Justice John Roberts sided with the minority.
-2000: Bush v. Gore (all Justices voted along party lines).
-2021: The Supreme Court deals a new blow to voting rights, upholding Arizona restrictions, gutting the Voting Rights Act of 1964. 6-3 decision followed on completely party lines.
-2020: Justice Amy Barrett confirmed along Senate party lines, 52-48. Contrast this to 1993 Senate confirmation of Justice Ruth Ginsbert, 96-3.
Present U. S. Supreme Court Justices:
Several U.S. Supreme Court Justices including Amy Coney Barrett and Stephen Breyer are on the speaking circuit, trying to persuade Americans that on the whole, SCOTUS is not politicized. Will this persuasion effort be successful?
Justice Clarence Thomas at a recent speech in Notre Dame declared “Judicial philosophies are not the same as political parties..Justices do not rule according to their personal views. The court was considered to be the least dangerous branch and now we may have become the most.
Thomas may not be credible on this issue. He has been designated at 3.69, the most conservative ever on SCOTUS. So on the surface, he appears to be voting according to the views of his political party and his religion: Catholic.
Further, he is notorious for not asking any questions. He claims it is because the presentations are so chaotic with other Justices interrupting the presentation. For many lawyers and judges, this extreme not-asking-question makes one wonder if he is really up for the job.
Chief Justice John Roberts has, as one of his goals, for the Roberts Court to be viewed as non-partisan. He believes that the more the court issues opinions of 5-4 or 6-3 (now) along possible partisan lines, the more the court will be perceived as Non-Partisan. This may help to explain several of his votes that have not followed the Conservative agenda. He has become “the swing vote” in several cases maybe not for legal reasons but for “balancing” reasons. He strategically wants to protect his reputation and that of the court.
Why now are SCOTUS Justices concerned about their perception?
Probably, a major reason is the polls. The Gallup poll focuses on approval or disapproval of SCOTUS.
The present approval rating is 49%. This can be compared with the 61% approval rating in 2001, 2007, and 2010.
The disapproval rate is now 44%-possibly the highest rate. In 2001 and 2011, the disapproval rate was 29%.
The Annenberg Civics Knowledge Survey: "…survey also identified troubling signs in how the Supreme Court and the justices are perceived by the public, suggesting that the distinction between judges and elected politicians is becoming blurred. More than half of Americans (57%) agree with the statement that the court "gets too mixed up in politics." And just half of the respondents (49%) hold the view that Supreme Court justices set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case.
For many decades, the Supreme Court of the United States (SCOTUS) had the illusion of being non-partisan and not politicized. The Constitutional SCOTUS process made this illusion silly from the beginning. The partisan, politicized U.S. President nominates and the political body, the U.S. Senate, “advises and consents.” Nonetheless, many US residents, buoyed by the mass media, hoped that the Justices would rise above politics and do what is best for the nation.
There were two turning points where people began to realize how political SCOTUS is and was. Many cite the “Borking” of 1987 Nominee Robert Bork and the controversial 2000 Bush v. Gore decision. Before the Bush v. Gore decision, it seemed as if SCOTUS erred on the side of caution and noted such cases as “outside the authority of this court.” This court ruled on the Bush v. Gore case even though most Constitutional Scholars declare that this was a “state” issue and should have stopped at the Florida Supreme Court. (Rumor has it that at an election party, Justice Sandra Day O’Connor vowed even not to retire if Gore were elected. So, instead of recusing herself, she voted in favor of Bush in this case.)
*(What it means to be Borked?
To attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification. Cite: Merriam-Webster
Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate and to appoint, while the Senate possesses the plenary power to reject or confirm the nominee prior to their appointment. (Wikipedia)
So, in summary, a politically elected President nominates and a politically elected Senate confirms. Surely this sets the stage for politicization?
It is interesting that before 1925, the nominees were never questioned.
-The 1938 nomination of Felix Frankfurter consumed zero hours and zero questions.
-In 2018, the nomination of Brett Kavanaugh consumed 48 hours with 1278 questions.
Personal interviews historically were not done. Now, it seems to be a requirement.
Before 1981, the confirmation process was rapid.
Some assert that 1987 was a turning point when nominee Robert Bork was “Borked” by the Democrats.
Before 2017, 60 votes were necessary and the threat of a filibuster was present. In fact, President Lyndon B. Johnson’s nominee Abe Fortas was successfully filibustered and withdrawn.
Since most of the SCOTUS nominees come from the federal bench, it is wise to look at the federal bench to discern how partisan they are.
Some researchers divide legal issues into “hard” which includes patent, real estate, taxation, bankruptcy issues. “Soft” issues are such topics as immigration, family, sexual identity, transgender, abortion, etc.
Research and experience seems to indicate that judges, especially federal, do a diligent job in being fair in hard Issues but show their politics in the soft issues.
In the soft Issues, there seems to be 90% predictability that their decision will match either their politics or the politics of their appointee.
Examples of Soft Issue Rulings:
-Trump Appointee Drew Tipton blocks President Joe Biden’s limitation on immigration arrests.
-Barack Obama Appointee Rosemary Marquez, a federal judge, on Monday threw out a major Trump administration rule that scaled back federal protections for streams, marshes, and wetlands across the United States, reversing one of the previous administration’s most significant environmental rollbacks.
-Many Democratically appointed Judges are asking the U.S. Department of Justice why the charges against the perpetrators of the January 6 insurrection are so low. Many are simply charged with a misdemeanor of obstruction of justice.
-2021: In a 6-3 decision, yhe Supreme Court on Thursday blocked the Biden administration's Covid-related eviction moratorium.
"Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium's expiration," the court wrote in an unsigned, eight-page opinion.
The vote split along party lines; that is, the three appointed by Democrats voted together.
-Obama appointed Judge Urrita placed a stay on voting restrictions
-Obama appointed Judge K. Williams granted cruise company injunctive relief in regards to vaccination vs governor.
-Obama appointed Judge Gregg Costga, 5th US Court of Appeals, upholds Biden’s limitation of immigration arrests.
-Obama Judge Randolph D Moss (Springfield, OH, b 1961) wonders why January 6 insurrectionists are only charged with obstruction not sedition/insurrection.
-Obama Judge Beryl A. Howell wonders why prosecutors are only asking for $1.5M from criminals when insurrection costs $500M.
So on “hard” issues, federal judges are not predictable, except for adherence to the law, but on “soft” issues, their rulings are predictable according to their politics.
Illusion of Non-Partisanship
The mass media has been a major promoter of the illusion of nonpartisanship with federal judges including SCOTUS. When they report a story, most of the time it is challenging to discern who appointed the Judge. For example, recently, the newspaper headline should have read:
Obama Appointed Federal Judge Strikes Down Florida’s Riot Law
Instead, it read:
Federal Judge Strikes Down Florida’s Riot Law.
In most cases, who appointed the federal judge is not included in the article even though that is a vital part of the story. One usually has to Google the judge to discern the appointee.
Retired DC-based attorney Winston Haythe notes that almost no Justice has become more conservative while in office, whereas some have become more liberal. Of the 115 SCOTUS Justices in history, two exceptions are frequently mentioned.
Chief Justice Earl Warren is often cited as the extreme example. He was nominated by President Dwight D. Eisenhower who was known as a nonpartisan. Eisenhower appointed Warren believing that they shared the nonpartisan theme, plus being moderate Republicans. Some say that Warren then became one of the most liberal Chief Justices guiding SCOTUS during tumultuous times.
Eisenhower at one point declared this nomination as “the biggest damn fool mistake I ever made.”
Maybe Warren’s transition was a bit predictable since he did not follow the typical nominee of being chosen from the federal bench. Warren grew up in a modest family, served time in the military, graduated from law school later in life, served as District Attorney and then became the 30th Governor of California, running on the nonpartisan theme in 1942. Warren then served as Chief Justice from 1953-1969.
Retired Justice David H. Souter also surprised the President George H. W. Bush who nominated him in 1990 to be a moderate to conservative. Souter turned out to be a liberal, supporting Roe v. Wade, the separation of religion, and government and that laws need to change as the reality on the ground changes. Souter also did not come from the regular chain og SCOTUS nominations, albeit he graduated from Harvard Law School. He served as the Attorney General of New Hampshire and was on the New Hampshire Supreme Court when nominated.
Oddly, he retired in 2009 to return to New Hampshire. “Oddly,” is used because most SCOTUS members stay until they die (Ginsburg/Scalia) in office or become too ill to work.
Nine Other Justices Surprised the Nominating President
Two of these nine justices were appointed by Democrats and were thought to be “liberal.”
Felix Frankfurter (1939-1962), an appointee of Franklin D. Roosevelt, migrated from an earlier liberal, almost radical view, to a clearly conservative one, disappointing many Democrats in the Warren Court.
Another Eisenhower appointee, William Brennan (1956-1990), was even more controversial and more liberal than Warren, and had one of the longest careers in Supreme Court history. Brennan became a true champion of the powerless and of women’s rights, infuriating many, and overcoming the early belief that he would be a conservative on the Court.
Richard Nixon, on the third round, after two rejected nominees for the Supreme Court, selected Harry Blackmun (1970-1994), who was believed to be as conservative as his “Minnesota Twin,” Chief Justice Warren Burger. But over the years he grew increasingly liberal. Of course, he is best remembered for the authorship of the majority opinion in Roe V. Wade, the abortion case, in 1973, and was threatened by anti-abortion activists for the rest of his life…
Justice Sandra Day O’Connor (SDO) Not the Exception, but Maybe Growth While on the Court
President Ronald Reagan's first SCOTUS Nominee was SDO. Progressives initially applauded SDO, possibly thinking because she was the first female, she would not be that conservative especially on family, children and female issues. But, during the first half of her 24 years on the court, she was classified as “a well-established conservative” or “classic conservative." She seemingly grew while on the bench realizing her power and influence. After her decision in Planned Parenthood v Casey where she sided for Planned Parenthood, she was designated as “the swing vote.” Finally, her siding with Bush in the 2000 Bush v. Gore sealed her category as a Republican conservative.
So Justice Amy Barrett is trying to persuade Americans that SCOTUS remains a fount of apolitical morality.
…and the supreme court is a dispassionate nonpartisan branch of government free of bias – this is the Orwellian fable that Justice Amy Coney Barrett is now asking Americans to believe.
And Barrett is asking us to believe it not merely after the court’s wildly partisan ruling on abortion rights, but also just months after she promoted climate denialism to a national audience and refused to recuse herself as she helped secure a legal victory for the fossil fuel giant that employed her father for decades.
Moreover, she presented at the University of Louisville center named after the very partisan Kentucky Republican Mitch McConnell.
Justice Barrett has only been on the bench since October, 2020. Much like Justice Clarence Thomas, many believe her appointment to replace Justice Ruth Ginsberg was tokenism.
Ohio State University School of Law Professor Emeritus Nancy Hardin Rogers offers these wise thoughts:
To me an exceedingly important story to include re the independence of the judiciary is that about 60 (number from the news) judges of various parties and appointing authorities upheld the election officials regarding the Presidential election during this past year, and SCOTUS did not interfere though asked by Republican officials to do so.
Like you, I suspect that the partisan harshness of the Senate process leaves a partisan bitterness on those who endure it. I have the impression that tendency has increased in recent decades, particularly at the Supreme Court level.
Wanting the judiciary to be as nonpartisan as practicable and for the judges to be good, I would not choose the elective judicial process, such as many states have, over the federal judicial appointment process. There may be other options????
In conclusion, the non-partisanship of the federal bench is and was an illusion. Nonetheless, it is hoped that federal judges will aspire to be above politics.
See Recommended Books under “Blogs” drop down menu. Clicking on any book will lead one to the discounted Amazon site.
Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education
The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray
5 Languages of Appreciation in the Workplace.
Getting Your Way Every Day.
Scalia Lecture/Justice Stephen G. Bryer, The Authority of the Court and the Peril of Politics.