Dangerous Trends on the Supreme Court

This is second in an a Governing series in a historical look at the Supreme Court to coincide with nominee Ketanji Brown Jackson's confirmation process, which continues this week before the Senate Judiciary Committee.

You can listen to the companion audio version of this and other essays in the series using the player below or on Apple Podcasts, Google Podcasts, Stitcheror Audible.



Three dangerous trends appear to be jeopardizing the independence and credibility of the third branch of the federal government. Court decisions are increasingly falling out along what appear to be purely partisan lines. The watershed moment for this trend was Bush v. Gore in 2000, when the court voted 5:4 to abort the Florida vote recount and declare George W. Bush president. All five justices who voted to end the recount were appointed by Republican presidents. The four who dissented had all been appointed by Democrats.
More recently, when the court affirmed a key provision of President Obama’s Affordable Care Act, Chief Justice Roberts’ vote for the majority deeply enraged political conservatives and most Republicans, because he had not voted as expected along strictly partisan lines. Calls for his impeachment (and death threats) were based on the conviction that he had betrayed the Republican cause. Recent abortion-related cases have also been decided on party line votes. As the John W. Kluge Center’s scholar-editor Andrew Breiner has written, “Increasingly, justices are viewed through a lens of partisanship or ideology, and they are seen as interested in achieving the policy goals of their side rather than as disinterested legal thinkers.” In the 2014–2015 Supreme Court term, for example, virtually every 5–4 decision played out perfectly along party lines. The pattern has continued in more recent terms. This is not good for the country or the court.

Disqualification By Litmus Test

Second, presidents are increasingly prone to use overt or covert litmus tests in nominating new justices to the court. Although most presidents proclaim (often indignantly) that they would never employ litmus tests, this sort of vetting (on abortion rights, same sex marriage, gun rights, etc.) nevertheless routinely takes place behind the scenes, often by way of carefully modulated tacit agreements which permit everyone involved to proclaim their innocence. President Donald Trump broke with tradition by openly declaring in 2016 that he would appoint only men and women who would work to overturn Roe v. Wade, the landmark 1973 abortion decision. He said, too, that he would make sure his nominees were absolutely unwilling to chip away at the Second Amendment. Virtually all nominees insist in their Senate confirmation hearings that their minds are open, that they would have to see the specifics of the case before they could formulate an opinion, that they have no preconceived opinions on these fundamental and decisive issues, and that they would never permit their personal views or politics to distort their judicial decisions. By now, the American people are justly cynical about these strenuous disclaimers. Rightly or wrongly, virtually no one believed Amy Coney Barrett when she said, in her 2020 confirmation hearings, that her Catholicism and participation in pro-life rallies in Indiana would not influence her vote on abortion-related cases.

The Rise of Routine Partisanship

The third trend is perhaps the most disquieting. It used to be that all but the most controversial nominees eventually received solid bipartisan, sometimes nearly unanimous, support in the U.S. Senate. Reagan nominee Antonin Scalia was confirmed in 1986 98-0. He went on to be one of the most distinguished and pugnacious originalists in court history. He did not suffer fools lightly, including his fellow justices, whose legal logic he often openly derided. Reagan’s Anthony Kennedy was confirmed 97-0 in 1988, perhaps because the Senate was exhausted after the notorious Robert Bork confirmation hearings. George H.W. Bush’s nominee David Souter was confirmed 90-9 in 1990. Bill Clinton's nominee Ruth Bader Ginsburg, who proved to be one of the great liberals in court history, was confirmed 96-3 in 1993. Clinton’s second nominee Stephen Breyer was confirmed 87-9 in 1994. John Roberts, a G.W. Bush nominee, was confirmed with a 78-22 vote in 2005. President Obama’s Sonia Sotomayor was confirmed 68-31 (2009), and Elena Kagan 63-37 (2010).

The established norm was that the Senate would confirm the president’s choice unless there were a compelling reason to reject the nominee. Bipartisan confirmation didn’t mean that senators of the other party necessarily agreed with or approved of the views of the nominee, but both parties tacitly agreed both that elections matter (the president has the power of appointment) and that it is natural and inevitable that the other party’s nominees are likely to be at least somewhat ideologically different from one’s own party’s choices. This notion — that the Senate’s “advice and consent” role should routinely defer to the president’s choices so long as the candidate is not too extreme in outlook — continues to prevail for the approximately 1,200 other administration jobs that require Senate approval. In most cases, most of the opposition party votes to affirm the president’s choices, sometimes glumly, sometimes cheerfully.

But the stakes are now so high in Supreme Court appointments and the bipartisan norms that have prevailed through most of the last hundred years have at least temporarily collapsed, that bipartisan confirmations seem to have disappeared like VHS tapes and rotary phones.

The Collapse Of Consensus

Until recently, it was usually only the controversial Supreme Court nominees who have been confirmed by narrow majorities. After the second most bruising (some say disgraceful) confirmation ordeal in American history, Clarence Thomas was confirmed by a 52-48 vote on Oct. 15, 1991. Thomas, who was accused of sexual harassment by his former colleague Anita Hill, called his confirmation experience a “high-tech lynching.” He has now served for 30 years. President G.W. Bush’s last nominee Samuel A. Alito was finally confirmed 58-48 on Jan. 31, 2006. His Democratic opponents argued that he was insufficiently committed to civil rights and abortion rights, that he was too dedicated to states’ rights, and that he had been vague and evasive about his core beliefs during the confirmation process.

The Rise Of Partisan Bickering

President Trump’s first nominee Neil Gorsuch was seated with a 54-45 Senate vote on April 7, 2017. Much of the opposition to his nomination had nothing to do with him. The Democrats were still enraged by Senate Majority Leader Mitch McConnell’s refusal to confirm (or even vet) Merrick Garland in the last year of President Obama’s tenure.

Brett Kavanaugh was confirmed in October 2018 by a narrow 50-48 majority. Accused of having committed sexual assault as a teenager, Kavanaugh delivered perhaps the most undisciplined Senate hearing statement in the history of confirmation. He said the process had ruined his life, passionately denied the allegations, issued hostile rebukes to his Democratic detractors, and repeatedly insisted that drinking beer as a young man was not a disqualifying habit.

With the election of Donald Trump in 2016, bipartisan support largely disappeared. The Democrats continue to be enraged by the Merrick Garland affair and the subsequent confirmation of Amy Coney Barrett in the last 10 days of the Trump administration. The Republicans, like the elephants of their iconography, still hearken back to the rejection of the brilliant, if unrelenting Robert Bork, and their conviction that Kavanaugh was mistreated by Democrats on the Senate Judiciary Committee. The gloves are off.
What this trend signifies is that the judicial branch has been sucked into the increasingly ugly partisan bickering of our time. Much of the high court’s authority in sorting out some of the fundamental issues in American constitutional life depends on at least the appearance of nonpartisanship, judicial objectivity and dispassion. As John Roberts said in his confirmation hearings, justices are expected merely to “call balls and strikes,” not attempt to shape the destiny of the United States along the lines of their political or social preferences. For most of U.S. history, the Supreme Court has seemed to be mostly above the political fray, to be the branch of the national government least impacted by routine partisan politics and the passions of the moment. Thanks in part to the much greater visibility of the court’s work in the age of 24-7-365 media reporting, in part to the recording and public dissemination of court oral arguments, and in part by the determination of ardent partisans to thrust the court into the political arena, most Americans now regard the Supreme Court as political cockpit.

In her confirmation hearing, Judge Ketanji Brown Jackson has followed a strategy perfected by Chief Justice John Roberts in 2005: Emphasize your respect for the Constitution and don't take the bait by senators working to elicit a legal point of view. https://t.co/t5NxHQBezT

— The New York Times (@nytimes) March 22, 2022

Whether President Biden’s nominee Ketanji Brown Jackson will be confirmed by the U.S. Senate is unclear. Court observers believe she will be narrowly confirmed, perhaps with a couple of Republican votes, perhaps merely by a strict party vote with the addition of Vice President Kamala Harris’ tiebreaking vote as presiding officer of the Senate. What does appear to be clear, however, is that Ms. Jackson is exceedingly unlikely to be confirmed by the kind of broad consensus and deference of previous decades.

*Editor's note: a previous version of this article incorrectly stated that David Souter was appointed by Bill Clinton, instead of by George H.W. Bush.

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You can also hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, The Thomas Jefferson Hour. He is also a frequent contributor to the Governing podcast, The Future in Context. Clay’s most recent book, The Language of Cottonwoods: Essays on the Future of North Dakota, is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing cjenkinson@governing.com or tweeting @ClayJenkinson.