The Growing Politicization of the US Supreme Court
April 16, 2024
Freyja Quinn
The Growing Politicization of the United States Supreme Court
Introduction on the Court
The United States Supreme Court is wrapped in the assumption of being a non-political institution, but the makeup of the Court is not agreeable with that claim. When justices support specific political claims, it takes away from the function of the Court and increases polarization among the public while weakening democracy. The history of Supreme Court nominations and confirmations helps explain the roles that both the president and the Senate hold within the Court. The differences between the roles establish precedents for procedures, which is further explored during Judge Robert Bork’s failed confirmation to the United States Supreme Court. The role of the media in reporting and influencing public opinion on Supreme Court nominees and cases has also increased. The media landscape plays a pivotal role in the politicization of the Court and how people view the Court. Examining alternatives can help to minimize the politicization of the Court and shift the precedent that the Constitution created in its foundation. The growing politicization of the Supreme Court is done in part by the process of selecting and seating justices enhanced by media attention and influence, altogether leading to a failed sense of trust that the American people have in democracy and democratic institutions.
A Major Shift: Bork’s Nomination
A radical shift in the Supreme Court occurred with the case of Judge Robert Bork’s nomination to the Court which changed future appointment processes. The president’s role in nominating someone to the Court is stated by Professor Henry Abraham as involving four facets which include, “(1) Objective merit, (2) personal friendship, (3) balancing representation on the Court, and (4) political and ideological compatibility.” These qualities can be examined in the nomination of Judge Bork and how the fourth component of ideological compatibility played a role in his nomination. Judge Bork was appointed to the Court by President Ronald Reagan in 1987. Bork was a circuit court judge, Attorney General for the United States, and Solicitor General in the U.S. Department of Justice. Judge Bork’s previous work experience was overshadowed by his strict interpretation of the Constitution that added to the dismay of opponents. Professors Gross and Vieira explain that “opponents quickly focused on Bork’s judicial philosophy, rather than his professional qualifications, as the basis for denying confirmation. This focus on ideology raised a crucial question as to whether it was proper to reject an otherwise qualified nominee for ideological reasons.” Judge Bork’s failed nomination to the Court would not only create a new protocol for nominating people to the Court, but it would also change the implications of public perception of the Supreme Court. While Bork was not the first nominee to have a constitutional philosophy, he was pressed more on it, and that added more radical conservative views that worked against him in the nomination process. “The rejection of judicial nominees on this basis has important implications for judicial independence and public confidence in the federal courts.” The shift in the Supreme Court established ideology as a proper means of voting for or against someone to the Court while bilaterally shifting public perception dramatically. It validates how much power is held in the Senate in making Supreme Court selections. The public attention highlights tensions and shows how ideology rather than qualifications can be used against a nominee.
Impact of the Media
Over time, the increased influence of the media and sensationalism in the news influenced how politics is received. With social media and news spreading incredibly quickly, getting information has never been more accessible, but it is unique concerning the Supreme Court. Media framing of the Court can alter public perception of a case, and the motivation of the media is not always in good faith. Specifically, “media analyst Andrew Tyndall asserts that the press tends to focus on cases that generate conflict and have clear winners and losers.” When news organizations constantly look for winners and losers instead of objectively delivering facts, it changes how the news is received and preemptively creates political divisions. The media thrives on outrage, so if they can make the Supreme Court and its justices look chaotic, they will profit. This is examined further as “social scientists have coded coverage of the Court to determine the existence of political or apolitical frames, a reference to the president who appointed the particular Justice is considered a political framing.” Appointing justices is already political, which in turn is emphasized through the media. The media acts as a mechanism for delivering information, but the influence of Supreme Court decisions intensifies as media outlets focus on profits, which furthers politicization. The media is manipulating coverage to one degree, and the need for positive coverage impacts the way the Court as well as other political figures speak, communicate, and make decisions.
Understanding political frames begins with the presidential nomination. Many believe that nominations are inherently political, since they are the result of party politics choosing a judge that aligns with the politics of the President. Rather than separating a judicial nominee from the president appointing them, they are often intertwined. “People increasingly see judges as ‘Trump judges’ and ‘Obama judges.’ Before discussing qualifications, the media can deliver information even unknowingly politically by giving discerning information, making the public more skeptical of the courts and the apolitical nature it is meant to have.
The Significance of Timelines
Recent Supreme Court nominations demonstrate how the political timeline of events can slow down or speed up the process. The nomination of Amy Coney Barrett took twenty-seven days from the time she was nominated to being confirmed to the Court. Simultaneously, while the nomination was happening between September and October of 2020, the presidential election was fast approaching. The rush to confirm Barrett to the Court would increase the conservative majority and could be used as a political tactic during the election. The media was already focused on the upcoming election, and the vacancy of a Supreme Court seat heightened the politics and press coverage of the events. The press “appeared to focus on the Senate’s apparent flip-flop on the Thurmond Rule (compared to the Garland nomination in 2016) and Barrett’s judicial philosophy and likely rulings on controversial social issues if appointed to the Supreme Court.” The “Thurmond Rule” is named after Senator Strom Thurmond who in 1980 believed that vacancies in the Court in the last year of a president’s term should be filled by the next president after the election. This rule was maintained when Merrick Garland was nominated by President Barack Obama. It was the leading reason Garland was not appointed to the Court. Those who opposed Merrick Garland’s nomination in 2016 were now quickly allowing the swift confirmation of Amy Coney Barrett in 2020. The press was able to witness this firsthand and used the media to explain the direct discrepancies between the Garland nomination and the Barrett nomination. During a speech at the McConnell Center in Louisville, Kentucky, after her confirmation, Justice Barrett argued that the public perception of the Court is altered by the media’s politicization in reporting Court decisions. More specifically, ‘”The media, along with hot takes on Twitter, report the results and decisions. … That makes the decision seem results-oriented. It leaves the reader to judge whether the Court was right or wrong, based on whether she liked the results of the decision,’ Barrett said.” Justice Barrett asserted that Court decisions can be skewed when social media’s need for attention and notable news stories act as currency in a media-driven ecosystem.
Possible Solutions
The politicization of the Court emphasizes a need for structural change in the Court’s foundation. There have been various alternatives proposed. Debate has increased between those who seek change and those who want to stick to the status quo. The Yale Law Journal provided background information on the Supreme Court’s need for reform but proposed a specific structural change to the Court which hasn’t been examined as closely. They claim two main proposals. One brings a unique approach to combating the political nature the Court has seen grow over the years. ‘The Balanced Bench’ approach would start with ten justices, five being Republican appointees and five being Democratic appointees. The ten justices would have to agree unanimously on the appointment of five additional justices. The proposal aims at limiting partisanship within appointments and on the Court. Partisanship focuses on the party divide in Supreme Court appointments which in turn advances the politicization the Court has become. “This plan has a chance of saving the image of the Supreme Court as an institution above politics—and of preserving the image of law as a distinct enterprise.” Once touted as apolitical, the Supreme Court has witnessed more political misfires in the partisanship among its justices and appointments. The White House Commission researched different methodologies that could be implemented in Supreme Court reform. Similarly, the White House Commission research analyzed the integration of term limits that would help minimize ideological warfare and promote more independent justices. The proposal states, “We think the threat of nonrenewal would undermine the Justices’ independence and damage the internal dynamics of Supreme Court decision-making.” The proposal inspects the cost-benefit analysis by understanding that independent justices, who are appointed on a bipartisan basis, can bring new ideological perspectives without unproductive political battles. ‘The Balanced Court’ divulges the importance of bipartisanship and moderate members on the Court. Amending the makeup of the Court and having a more consistent vote on new appointments will expand ideas and allow for more judicial independence, minimizing politicization. In response to Epps and Sitaraman’s proposal for Supreme Court reform, Professor Stephen E. Sachs argued that the proposal was interesting but had underlying flaws that could not be fixed merely by a ‘Balanced Court’. In the ‘Balanced Court’, the bench would have five Democrats and five Republicans that are labeled that way “making their party membership the very condition of their holding their seats.” Although the plan aims to minimize the partisanship of the Court, the existence of Republican and Democratic permanent members already established de facto partisanship. Although there would be a rotation of the bipartisan judges, the strictly partisan ones are both labeled as such and have a powerful presence on the Court with staying power. The method of having these permanent Republican and Democrat judges will increase partisanship, especially if the voices of those on the Court are exceptionally loud and powerful.
Conclusions and Implications
The politicization of the Supreme Court has grown over time but has always been present. The established roles of the Senate and the president make the responsibilities clear and leave room for political action to seep into the process. The prominent partisan divide is enhanced by media exposure. Proposed solutions to amending the Court show potential in the possibility of a less political Court but are still in progress and have yet to be enacted. The power and influence of the media in politics are detrimental to democracy and prove difficult for justices to navigate the current system. Solutions to the Court must be more realistic. Reforms have no power if they are unrealistic and unlikely to be passed by Congress or implemented at all. Examining both the limitations and successes of solutions to help depoliticize the Court will be beneficial to the American people in maintaining democracy as well as creating a stronger sense of trust within fundamental institutions.
Bibliography
Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court. New York: Oxford University Press, 1974.
Barrett, David M., Guliuzza III, Frank, Reagan, Daniel J. “Character, Competency, and Constitutionalism: Did the Bork Nomination Represent a Fundamental Shift in Confirmation Criteria?” Marquette Law Review, vol. 75, iss. 2. https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1682&context=mulr, 1992.
Chang, Connie, and Josh Freeman. “Supreme Court Confirmation of Amy Coney Barrett: A ‘Blatant Act of Bad Faith’?” Documents to the People, vol. 30, no. 3-4, pp. 30-36. https://doi.org/10.5860/dttp.v49i3/4.7688, 2021
Epps, Daniel, and Ganesh Sitaraman. “How to Save the Supreme Court.” The Yale Law Journal, vol. 129, no. 1, pp. 148-206. https://www.yalelawjournal.org/pdf/EppsSitaramanFeature_srycu3pa.pdf. 2019.
Gross, Leonard, and Norman Vieira. Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations. United States: Southern Illinois University Press, 1998.
Jones, RonNell A. “Media Politicization of the United States Supreme Court.” Otani Socio-Legal Series, vol. 4, no. 4, pp. 613–630. https://opo.iisj.net/index.php/osls/article/view/321, 2014.
Ramsey, Mary. “Justice Amy Coney Barrett Argues US Supreme Court Isn’t ‘A Bunch of Partisan Hacks’.” Courier-Journal. https://www.courierjournal.com/story/news/politics/mitch-mcconnell/2021/09/12/justice-amy-coney-barrett-supreme-court-decisions-arent-political/8310849002/, 2021.
Sachs, Stephen E. “Supreme Court as Superweapon: A Response to Epps & Sitaraman.” The Yale Law Journal Forum. vol. 129. pp. 93-107, 2019.
Shapiro, Ilya. “The Politics of Supreme Court Confirmations and Recommendations for Reform.” Cato Institute. https://www.cato.org/testimony/perspectives-supreme-court-practitioners-views-confirmation-process, 2021.
Vining, Richard L., and Teena Wilhelm. “Explaining High-Profile Coverage of State Supreme Court Decisions.” Social Science Quarterly, vol. 91, no. 3, pp. 704-723. https://doi.org/10.1111/j.1540-6237.2010.00715.x, 2010.