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Trends in the Law: The Highly Partisan High Court

This blog is an installment in our Trends in the Law series.


A very important, historic event in the law is occurring this week. President Trump’s second nominee for the U.S. Supreme Court, Judge Brett Kavanaugh, is going through the senate confirmation process. The hearing got off to a raucous start, with protesters shouting and Democrats making a motion to adjourn the proceedings. All the drama had nothing to do with Kavanaugh’s credentials or fitness to serve on the highest court in the land; no one is disputing that he is extremely qualified. The uproar is over the fact that Kavanaugh, like President Trump’s previous nominee Justice Gorsuch, is known as a “conservative” judge, whose writings and decisions favor conservative causes such as deregulation, executive power, gun rights and abortion restrictions.

Accepting for the moment that Judge Kavanaugh’s conservative bonafides are a reality and that his decisions favor a political side or philosophy, how is it that the judiciary—the independent, apolitical branch of government—became so partisan and politicized? How is it that important decisions before the Court are increasingly decided by 5-4 votes, split down “conservative” and “liberal” lines? Why is it that the public can even identify these conservative and liberal blocks of Justices?

This partisan trend has had an impact on the public’s view of the Court. A Quinnipiac University Poll taken in the spring of 2017 just after Justice Gorsuch was confirmed found that 68% of respondents believed that the confirmation process was too partisan, and only 13% said that the process had the right amount of partisanship. Even more revealing is the following: in 2000, 62% of Americans approved of the job SCOTUS was doing, but only 42% approved by 2016. When partisanship and politicization increases, confidence in and respect for the Court and the rule of law decreases.


The U.S. Supreme Court was not always partisan, and the nomination process was not always so politicized. Although politics always formed a backdrop to any choice, presidents were not afraid to nominate someone of a different ideology or with a controversial background. In 1937, President Franklin Roosevelt appointed Hugo Black, a former member of the Ku Klux Klan, to the Supreme Court. Black became one of the high court’s most distinguished jurists, and a staunch defender of constitutional rights. Arguably, an appointment like Black’s would not happen in today’s highly polarized environment.

In 1953, President Eisenhower appointed Earl Warren to the U.S. Supreme Court. President Eisenhower was a conservative Republican with many powerful, conservative Southern friends. Warren went on to preside over one of the most liberal periods in the history of the Supreme Court, with historic opinions on civil rights beginning with Brown v. Board of Education (1954), and continuing with Gideon v. Wainwright (1964), and Miranda v. Arizona (1966).

Fast-forward to 1987 and the pivotal confirmation hearing that many people believe started the trend toward politicization and polarization of the Supreme Court and the confirmation process. President Ronald Reagan nominated Judge Robert Bork to the U.S. Supreme Court; due to his long record of controversial decisions and academic writings, liberal activists and democratic senators strongly opposed his confirmation. The hearing became focused on ideological differences: Bork was a conservative who opposed civil rights including desegregation, gender equality, a right to privacy and the teaching of evolution in public schools, and liberals opposed him for precisely those views. Bork’s nomination was defeated by the largest margin in history—58 to 42—and a new term was coined, “to bork,” which means to vilify a person systematically. From Judge Bork’s hearing to the present day, the trend has continued toward confirmation hearings focused on whether a nominee is liberal or conservative, and how he or she is would vote on key issues likely to come before the Court rather than on a nominee’s qualifications and experience.

President Reagan also nominated Antonin Scalia in 1986. Although less controversial and quickly confirmed, Justice Scalia led the conservative quorum on the court for 30 years and left a legacy of decisions in which the conservative agenda was upheld. The refusal by the Republican-controlled Senate to even hold a confirmation hearing for the moderate nominee Merrick Garland in 2016 is a testimony to how vehemently protective conservatives were of Scalia’s seat. Justice Gorsuch, a Federalist Society pick, filled Scalia’s seat—and role—in 2017.


With Justice Kennedy’s retirement (Justice Kennedy was also a Reagan appointee), President Trump has nominated another judge for the U.S. Supreme Court. Like Justice Gorsuch, Judge Kavanaugh is on a list compiled by the Federalist Society, and is therefore considered to be conservative; his decisions from his 12 years on the D.C. Circuit Court and his legal writings appear to support this label. The stakes are high: Justices Roberts, Alito, Thomas and Gorsuch tend to vote as a block on important cases, while Justices Ginsburg, Kagan, Breyer and Sotomayor tend to vote as another block. Because Kavanuagh would be a tie-breaking vote, and more than likely add a fifth and decisive vote to the existing four conservative justices on the court, his confirmation hearing has been extremely contentious.

What are the “important cases?” The holy grail of gays, guns and God for starters. But currently, campaign finance, voting rights, health care and immigration are important issues that are winding their way up the courts and will inevitably land in the Supreme Court. Will the justices vote as blocks on these cases?

Perhaps the better question is whether having identifiable blocks of conservative and liberal justices affects Justice. Put another way, has ideology and partisanship so permeated even the highest court in the land that its ability—its duty—to be impartial has been compromised? The Trend in the Law is not looking promising.


If you or someone you know has been injured, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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