The Partisan Future of the Supreme Court

The textbook talks about how the Supreme Court views itself as being nonpartisan. Lifetime terms allow the justices to remain isolated from political pressure. However, the current hyper polarized political environment threatens to harm the bipartisan legitimacy of the Supreme Court and the judiciary branch as a whole. Presidential nominations for judges have to be accepted by the Senate. If the Senate is controlled by party not in the White House, judges will not get confirmed.

Only 22 of President Obama nominees were confirmed during his final two years in office and he left office with 107 vacancies on the federal bench due to the Republican led Senate’s refusal to confirm them. President Bush had similar issues. The 60 vote threshold was only saved by the Gang of 14. Most concerning was the refusal to hold a hearing on Merrick Garland’s nomination for the Supreme Court last year. The use of the nuclear option for the confirmation of Justice Gorsuch represents another blow in the non partisan reputation of the judicial branch.

It is clear that the most judicial nominees from now on will only be confirmed if the president’s party has a majority in the Senate. There is the possibility that other seats on the high court will be open soon due to Justices Breyer, Ginsburg, and Kennedy all being over the age of 75 . If the Democrats retake the Senate in 2018, I think it is extremely likely for them to refuse to hold any judicial confirmation hearings for any open seats on the Supreme Court and other federal courts. This could leave the Supreme Court down a few justices despite having to deal with the most pressing constitutional issues of the day.

If Hillary Clinton won the election in 2016 and the Republicans held the Senate, the possibility for more judicial vacancies would have been extremely likely. When multiple Republican Senators have stated support for the idea of not confirming any nominee from Clinton for any current or future vacancy, it represents how extreme partisanship damages the legitimacy of the courts. If ideology trumps experience for all future judgeships, the courts will have longer absences and will be weakened as an institution. The Supreme Court cannot enact financial or legal punishment to ensure people abide by their decisions. A hyper partisan Supreme Court invites the risk that future presidents will ignore rulings from the court since it no longer has bipartisan respect. That would undermine the checks and balances of the constitution and harm popular sovereignty and liberal democracy as a whole by implying that presidents are above the law, free from judicial reproach

5 Responses to "The Partisan Future of the Supreme Court"

Margaret Castelli says:

December 5, 2017 at 1:56 pm

Your post on the risks of partisanship in the Supreme Court is very astute and provides a fascinating perspective on this issue. The judicial branch, I feel, is often seen as the lesser of the three branches of government we have in our American democracy. For instance, consider the fact that in our class, we have left covering this branch for last. We, as Americans have little understanding of the impacts that the judicial branch, especially the Supreme Court, have on our livelihood and our ability to live under the Constitution. The Supreme Court’s main power is defined now as deciding if laws or actions are constitutional, and if this bench lacks its full membership due to partisan issues happening in our country, laws that violate our democracy could slide through.
Kendall Crispin says:

December 5, 2017 at 4:51 pm

The Supreme Court should not be viewed as nonpartisan, because many decisions are made based on ideology. There are also other ideas for the way Supreme Court makes decisions including strategic behavior of justices in the past, and social background. So maybe, it isn’t completely nonpartisan but there is definitely is hints of partisanship seen. The way each Supreme Court member leans is very known to the public, and the president and senate who elect each member for their life long terms. It is definitely important who has control of each house, because that is how decisions are made that shape our future. Currently, there has been talk of impeaching our president, and the Chief Justice has priority over the Senate in this matter. Since the current Chief Justice, John Roberts, was voted in by many republicans, it is safer to assume that Trump has a higher likelihood of staying in office, if it does come to impeachment.
Hannah Dunn says:

December 5, 2017 at 8:29 pm

I agree that the Supreme Court is largely partisan, but I don’t think this is a well-kept secret. It is no coincidence that President Trump’s nominee to fill justice Scalia’s seat, Neil Gorsuch, is starkly against abortion and for gun rights, two traditional hallmarks of the modern republican agenda.
While this partisanship can be viewed as problematic, I think it is more a symptom of our two-party system and the important tension that exists between factions. It isn’t supposed to be easy for presidents to nominate Supreme Court Justices. In the judicial branch, continuity is to be held paramount. I appreciate your point that congress is likely to block positions from being filled by a president of the opposing party, however I do not think this is inherently problematic. Rather, it is evidence of one party having an advantage over another for a period of time. Whether this is a good system I won’t say, but I think it was intentional on the part of the framers.

http://www.latimes.com/politics/la-na-pol-gorsuch-confirmed-20170407-story.html
Omar Ibrahim says:

December 6, 2017 at 5:49 pm

An idea that I thought about while reading this was what if we voted for Supreme Court Justices? Granted, there are a lot of logistics I have not given considerations to, but in theory I could see a way where this is plausible. For example, when a President nominates two people for a spot in the supreme court, and the country votes on who will fill the role. This in turn would make the president nominate potential judges who are more moderate, than they would if their party controlled Congress. Another positive would be the potential for increased representation in the Supreme Court. USA today has an article where they mention this and say that everyone on the Supreme court either went to Harvard or Yale, and the public may think that these “elites” are not in touch with them. This is a very far off idea but one that could potentially work and connect the Supreme Court to the citizens. https://www.usatoday.com/story/opinion/2016/09/15/supreme-court-garland-scalia-elect-justices-glenn-reynolds/90351964/
Brittney Morris says:

December 7, 2017 at 10:58 pm

While I understand your concern that nominees are not being appointed, I do not think that means the judicial nominees are partisan. It is very likely that the president either Republican or Democratic has nominated nonpartisan judges. However, due to the extreme polarization of the government the nominees fail to be appointed as a way of the legislative branch showing the power of their political party. The legislative branch continually fails to put the needs of the people first and refuses to work for the betterment of society and make nonpartisan decisions. It is sad that our country has come to the point where our government can’t even be effective because people are too considered with sticking to the guns of their political party rather than implementing change and reform. The Supreme Court already lacks in power, they do not need to be held back by self-interested politicians. It is frustrating that the most “powerful” group of people have no power to enforce their decisions. The Supreme Court should be given more power and be able to enforce without having to go through other branches.

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