Many Americans reacted to the Supreme Court’s decision to overturn Roe v. Wade with dismay and terror, not only because of what it meant for abortion rights, but because of what it signalled could be next. In a preview for the Court’s potential future rulings, conservative justice Clarence Thomas suggested that the Court should reconsider due process precedents including how they previously applied to cases concerning contraceptive access and LGBTQ rights. While Thomas’ fellow justices have not openly backed his views, many fear that the right-wing majority Court may threaten hard-won freedoms by implicitly welcoming conservative lawmakers from different states to pass legislation that violate the Court’s past decisions, with the intent of facilitating lawsuits that allow it to potentially reverse those rulings. The Court’s actions over the last few months are in keeping with the events of the past decade which have catapulted the nation’s highest court into a crisis of legitimacy. Commenting on the matter, Representative Alexandria Ocasio-Cortez warned that the country is “witnessing a judicial coup” and is in the midst of a “constitutional crisis.” According to one Gallup poll, the reason for such pessimism is the presumed, increasing impartiality of the Court. That in turn begs the question, was the Supreme Court ever an apolitical body, and if so, what has thrust it towards such a precarious tipping point in the minds of the public. Recent politicisation of the Court Supreme Court Justices Amy Coney Barret and Stephen Breyer have often lamented the public perception of the Court as being overtly political. Yet, despite their protests, the public thinks otherwise. According to a Quinnipiac poll, 61 per cent of respondents, including the majority of Republicans, believe that the justices are motivated by politics. A separate Gallup poll found that only 25 per cent of adults say they have a “great deal” of confidence in the Court, representing the lowest reading in Gallup’s nearly 50-year history of polling. While a recent report by a commission directed by Joe Biden to evaluate the Court could find nobody to blame for its seemingly partisan nature, observers place responsibility on both the justices and the lawmakers. However, in terms of the former, the most notable example is that concerning Thomas — by far the Court’s most conservative member. His wife, Virginia Thomas, recently became immersed in right wing politics, including participating in the efforts to reverse the 2020 elections. She is also involved with a number of organisations that have direct or indirect stakes in major cases likely to come before the Supreme Court. Despite this conflict of interest, Thomas has refused to recuse himself from any future or current cases. The conservative majority of the Court (6-3) is also blamed for the recent aggressive use of the shadow docket, a legal mechanism that bypasses the regular degree of transparency and scrutiny the Court is supposed to allow for. For example, this February, the Court voted in a 5-4 majority to overturn a panel of lower court judges’ unanimous verdict that the 1965 Voting Rights Act required the invalidation of the Alabama legislature’s 2022 congressional election district map. State politicians were accused of gerrymandering that map as it yielded one Black representative and six White representatives despite Blacks constituting 27 per cent of the state’s voters. Gerrymandering refers to the practice in which electoral maps are drawn with the intent of maximising the vote share of one party, usually by excluding another. The Court’s surprising intervention, using the shadow docket, led to sharp criticisms from its own members, including the conservative Chief Justice, John Roberts. As President George HW Bush’s Deputy Attorney General Donald Ayer documented, what is unusual is the “court’s frequency and brashness in achieving these radical outcomes, and its willingness to do so often without an honest explanation and acknowledgement of what is actually going on.” However, the conservative bloc is not the only ones to blame. The late Ruth Bader Ginsburg, a liberal icon, also dipped her toes in the murky waters of partisanship when she called then presidential candidate Donald Trump a “faker” in 2016. She later apologised for the remark and promised to be more “circumspect” in the future. Politicians too, bear much of the responsibility. Mitch McConnel’s power play to prevent Barack Obama from filling a judicial vacancy during his presidency, and the rush to confirm a justice under Trump despite the fact that elections were ongoing, are two noteworthy examples. Joe Biden, despite promising to depoliticise the Court, actually acted in contradiction of that notion when he promised to put a black woman on the Supreme Court in order to win a presidential endorsement from Representative Jim Clyburn. On the bright side, Joshua Zeitz, a historian, argued in Politico, that the recent emphasis on neutrality may not be a bad thing as you can’t fix a problem until you address it. Towards that end, he writes, “we have pretended over the past 50 years that the Supreme Court is an apolitical institution. It never really was, and it isn’t today.” History of the Court The US Supreme Court has eight Justices and one Chief Justice. As of now, the Court has a 6-3 conservative majority, which, given the average age (62) of the conservative justices, is unlikely to swing in favour of the liberals anytime soon. The Supreme Court comes with a lifetime tenure and when a judge either dies or retires, their position is filled by the sitting President and ratified by Congress. The Court was initially established as a way of ensuring that state’s rights, in an incredibly federalist society, would never infringe upon the rights enshrined in the Constitution or the ability of federal lawmakers to enact policy. The lifetime tenure was supposed to limit partiality as in theory, the justices would never have to compete for reelection. However, as the American Progress Institute, a conservative think tank, points out, the founding fathers never envisioned that people would live as long as they do now. In fact, the average term of each justice is longer today than it ever has been in American history. It notes that the Supreme Court has more power than any other branch of government due to the longevity of tenures, writing that this “growth in power has contributed to the political nature of the confirmation process. Because there is no regularity in vacancies and each justice can now be easily expected to sit on the court for multiple decades, Senate leaders have a strong incentive to upend the confirmation process in order to secure a justice appointed by a president of their same political party. In addition, presidents are incentivized to select nominees with records that demonstrate they will likely rule in lockstep with that party’s ideology.” Highlighting the trend of liberal presidents picking liberal justices and conservative presidents picking conservative ones, Judge Paul Leahy once told his clerk that “a judge is a lawyer who is a politician who has a friend.” Rachel Sheldon, a Professor of History at Penn State builds upon the notion of an intrinsically political court, writing that “partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments.” There is much to back up that viewpoint. From the nation’s founding till the mid-20th century, there was no expectation that judges remain independent of politics. John Jay, the US’ first Chief Justice, served as a close advisor to President George Washington and held a dual role as Ambassador to the UK. When John P Rank, a legal historian, went through the official papers of Associate Justice John McLean, he concluded that “there was no day between his appointment in 1829 and his death in 1861” that McLean, a former member of Congress, “was not aspiring to be someone’s choice at the next Presidential election.” However, despite judicial supremacy being established in 1803, the Court rarely overturned congressional laws until after the Civil War. When the Court passed its infamous Dred Scott decision in 1857, things began to change. Under Dred Scott, the Court ruled that the federal government lacked the power to abolish slavery in the United States. The leading Republican party, which at the time bore the mantle of defenders of civil rights, blatantly ignored this ruling, and proceeded to pass laws that were in direct contradiction to the opinion of the Court. According to Nikolas Bowie and Dephana Renan, both Professors at Harvard Law School, it was only after Republicans lost control of Congress in 1875, was the Court “able to enforce its contrary interpretations of the Constitution – to devastating effect.” They add that “in the 150 years since Reconstruction (the end of the Civil War,) the thrust of judicial supremacy has continued to be revanchist. Through the 21st century, the justices overwhelmingly have exercised their claim of supremacy over Congress to insulate the wealthy and powerful from federal labor laws, federal voting laws, federal civil-rights laws, federal campaign-finance laws, and federal health-care laws.” Politicians too were guilty of trying to influence the courts. During the 1930s, as the split Court overturned several of President Franklin Roosevelt’s New Deal policies, the commander in chief proposed the Judiciary Reorganization Bill which would expand the Court, allowing him to fill the additional seats. The chasm between the legislative branches and the judiciary, and the so-called independence of the latter, was only strengthened a century after Reconstruction following the Fortas affair. In 1965, Abe Fortas was appointed as an associate justice of the court by his long-time friend, President Lyndon Johnson. Like his predecessors, Fortas remained an informal presidential advisor even as he sat on the court. Johnson even went as far as ordering a direct line from the White House to Fortas’ home and was believed to have met with him on over 145 occasions between 1963 and 1968. For three of those years, Fortas was a Supreme Court Justice. After entering into irregular dealings with a Wall Street banker, Fortas, fearing impeachment, eventually resigned from the Court. According to Zeitz, “the Fortas imbroglio fundamentally changed the way the Supreme Court projected its image, as well as the expectations Americans placed on the court. In the wake of his resignation, justices voluntarily agreed to new limits and disclosure obligations related to outside income. They stopped advising the presidents who appointed them to the bench.” The Court has always been inherently political but the decision to judicate on political lines has varied over time. The partiality debates Up till the 1960s, justices were either former politicians or aspiring politicians. They advised presidents and members of Congress, participated in political debates, and were expected to hold strong political opinions. Why then are we only now experiencing fervent allegations of partiality? One reason is that while justices like Jay were happy to weigh in on policy, they were unwilling to conflate political thought with legality. Additionally, there was less polarisation on issues back then. When the Court originally voted in favour of abortion rights under Roe v. Wade, several of the justices in the majority were conservatives. The difference was that, at the time, abortion wasn’t as polarised an issue amongst conservatives and liberals as it is today. Others argue that allegations of extreme partisanship are unfounded altogether. According to a report by the Sutherland Institute, “characterising the Supreme Court as political and partisan is likely less fair than it has ever been in the court’s history, but it persists.” To back up that assessment, the report cites a study by The Washington Post which found that since 2000, unanimity or near unanimity has become increasingly more common. From 2000 to 2017, a unanimous result accounted for 36 per cent of all decisions. In the 2019 term, it made up 46 per cent of decisions and 67 per cent in the 2021 term. So, if the majority of decisions are unanimous, on the face of it, it would seem as though allegations of politicisation are, paradoxically in fact, political itself by nature. However, the argument is slightly more complex than it may seem, primarily due to the magnitude of the decisions being made today. According to Mary Ziegler, a Professor of Law at the University of California, Davis, until recently, the Court was far more limited in their judgment. “Historically, the justices seemed reluctant to do anything too radical,” she writes, “lest they cause a backlash that damaged the power and prestige of the institution.” The Federalist Society, a highly influential think tank or lobbying arm, depending on how you look at it, has been particularly influential in this regard. The society started out in the 1980s as a forum for conservative students in elite schools to debate judicial policy. It promoted an approach towards constitutional law known as textualism which means that the judiciary should interpret law based not only on the wording of the Constitution but on what the founding fathers meant when they wrote those words. Beginning with Ronald Reagan, the Federalist Society developed extensive ties with the Republican party. All six of the conservative justices of the Supreme Court are affiliated with the society as are most of the federal judges appointed by Trump. The Federalist Society has been criticised for both undermining the authority of states (as it did with a New York handgun law) and moving power towards the states (as it did during the abortion repeal.) Its immense influence and contradictory views on state rights is particularly noteworthy because it deflates the popularly held argument that the supreme Court is doing what it should be — namely, protecting the ability of the federal government to impose nationwide laws without the unanimous support of states. Bowie and Renan, who argue that the Court does protect federal rights, write, “while these landmark cases invalidated state laws, the justices were following, not undermining, Congress’s orders. The decisions overruling state interpretations of the Constitution don’t represent judicial supremacy, but rather Congress’s ability to make and enforce national constitutional commitments.” The Democratic party is largely of the view that the Court is compromised by politics and has proposed more ethical transparency in terms of disclosing finances and other matters, and has also advocated for the wildly unpopular notion of expanding the Court. Republicans are less convinced but it is worth noting that with a conservative majority, they stand to benefit from a partisan Supreme Court. In just its current term, the Court has shielded police officers from being sued for Miranda violations, vastly expanded its interpretation of gun rights, overturned Roe v. Wade, and narrowed the separation of church and state. Simply put, there will always be debates surrounding whether the Supreme Court is truly impartial, whether it ever has been, and if that impartiality has been detrimentally impacted by the partisanship of our time. The answer, in turn, is likely to depend on what one stands to gain.
