What is the relationship between politics and the Roberts Court, and is it different from the way the Supreme Court of the United States has traditionally operated? At a virtual discussion held by Harvard Law School on Monday, panelists debated whether political ideology has helped shape the Court’s recent decisions on topics like abortion, gun rights, and election and voting law – and where to go from here. But while many of the panelists agreed that politics had influenced the trajectory of the Court, they differed on how and why.
“This Court has been politicized for some time,” said panelist Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund. “It’s important that we recognize how, over time, that has calcified in ways that are now forcing this Court to overturn precedent that we’ve come to rely on.”
In contrast, William Baude of the University of Chicago Law School said he believed the Court is encountering pushback because it has been applying the law as it views it. “I think the difference is that the Court is now much more committed to law at the expense of politics than any time in our memory, and indeed for decades before that.”
The conversation, the first in a series on SCOTUS and its role in the U.S.’s constitutional democracy, was moderated by Daphna Renan, Harvard Law’s Peter B. Munroe and Mary J. Munroe Professor of Law. Participants included Baude and Nelson; Leah Litman, of the University of Michigan Law School; Amanda Hollis-Brusky, professor of politics at Pomona College; and Adam Liptak, the Supreme Court correspondent for The New York Times.
Renan began by referencing the furor around the Court’s recent opinion in Dobbs v. Jackson Women’s Health. “The relationship between law and politics to judicial review, and on the Supreme Court in particular, has been a longstanding fixation in the United States and also globally, but it’s taken on renewed urgency and momentous consequence in our current times,” she said.
To Litman, the question of whether the Court is a political body belongs not just to law professors and lawyers, but to all Americans. “On some level, you can answer for yourself whether a political campaign that was premised on the idea of appointing justices to the Supreme Court to overrule Roe v. Wade, that then successfully resulted in the appointment of justices who overruled Roe v. Wade, is political or not,” said Litman.
The Supreme Court has not just been divided along the ideological lines that always existed, but divided along partisan lines, with every justice appointed by a Democrat voting more liberally than every justice appointed by a Republican. That is far from the historical norm.
Amanda Hollis-Brusky
“I do think that what is happening now is more pronounced and complicated by … the polarization of the political parties, which made it easier and also more important to appoint justices whose views align more closely with the view of a political party,” she added.
Beyond the influence of politics on the Court, Litman also worried about the impact of the Court on politics, “in a term where we are facing down the prospect of the Supreme Court essentially nullifying the protections of the Voting Rights Act [by] diluting voting power of racial minorities and potentially green-lighting state legislatures to limit voting rights, and not allow state courts and state constitutions to protect them.”
Hollis-Brusky agreed that increased political polarization had helped politicize the Court, and illuminated two other factors she saw as contributing to the problem over time. First is Americans’ “demand for total justice” — that is, “the idea that if the technology exists to protect us and keep us safe, that the government” should put it into practice. When one “layers [this] on top of a set of fragmented institutions, [because] power is divided so many ways in the United States, those demands end up hemorrhaging into the Court,” she said. The second factor, she said, was the expansion of the Court’s powers in the mid-20th century.
These developments collectively create incentives to appoint justices who will closely hew to the political ideology of the nominating president, said Hollis-Brusky. Today, “The Supreme Court has not just been divided along the ideological lines that always existed, but divided along partisan lines, with every justice appointed by a Democrat voting more liberally than every justice appointed by a Republican. That is far from the historical norm.”
There is “the sense that law is nothing more than partisan politics,” she added. “And I think that’s the dangerous place we find ourselves in right now.”
Baude acknowledged that something had shifted in the Court in recent years, but disagreed that political pressure is exerting an influence on the justices’ decision-making. “I think the majority of the Court has a strong view about what the law is and how it works,” he said. “The fact that the Court is committed to law over politics actually makes it seem more radical than previous Courts, not less, because it means that the Court is less inclined to tack toward the center in high-profile cases, or to consider public opinion as an anchor.”
Politics do come into play during the selection and appointment process, Baude said, but with respect to the justices themselves, “I think they do come by their legal views honestly and legally, and [they] don’t think they’re doing partisan politics when they do it.”
A Court in crisis?
Turning to Nelson of the Legal Defense Fund, Renan wondered how advocacy and litigation strategies were changing in the wake of recent decisions.
Nelson replied that, in her view, the Court’s trajectory of late is a significant break from its record, “which has largely been one of expanding rights, explaining them, narrowing the conception, or giving us different tests through which to determine their legality – but overturning and reversing rights that we’ve all come to rely on is actually something quite new.”
Her organization has had to think carefully about the kinds of cases it brings and the strategies it deploys. “This question of whether the Court has become politicized is really fraught, because on the one hand, we want to ensure that the rule of law is respected, that our institutions, our third branch of government, continues to be decisive on what the law of the nation is,” she said. “However, when it acts in such a politicized way, it makes it very difficult for people like me … to continue to point to the Court as an institution whose decisions ought to be followed whether or not we disagree with them … that has a presumption of objectivity and a presumption of being apolitical.”
“I think it’s very difficult to say that this Court is not facing a crisis,” she concluded.
Supreme Court appointments are political by design … You can have these justices operating in perfectly good faith, but nonetheless [they] are guided missiles who will, for legal reasons, execute a political agenda.
Adam Liptak
Renan then asked Liptak, the Times’ Supreme Court correspondent, about the role public perceptions play in discussions about the Supreme Court’s place in American democracy. Liptak emphasized the predictability of the current justices’ voting records, a break from a history in which it was not uncommon for a Republican-appointed justice to vote occasionally or even mostly with the liberals – and vice versa.
“Supreme Court appointments are political by design,” he said. “The president appoints, and the Senate, made up of sophisticated politicians, confirms, so there is politics on the front end. And oddly, the major constitutional way we want to give the justices independence, life tenure, actually injects politics on the back end, because they make strategic decisions about when to retire so that they can be replaced by someone ideologically similar. … You can have these justices operating in perfectly good faith, but nonetheless [they] are guided missiles who will, for legal reasons, execute a political agenda.”
And there are consequences, he said. “When the public perceives that there is a political element to judging, it is offended, because it thinks the law is a different realm. The public is prepared to accept this anti-democratic institution because it is doing something other than politics.”
As that illusion has been challenged, “the confidence rating has been dropping, as it does whenever the public perceives the Court to be a political, not a legal, institution,” he said.
‘Where do we go from here?’
“If the Court has become political in ways that that some people are extremely worried about – whether you take it in in terms of its ideology, its partisanship, or its unrepresentativeness … where do we go from here?” asked Renan.
“I think to some extent, conversations like this are a symptom of the disease, judicial supremacy, that we’ve all come to accept – that the Supreme Court just rules us all, and that we can do nothing but squabble over who controls it and try to pack more of our people onto it rather than more of the other people,” said Baude. “If instead we all try to move past the Court as much as possible, to give it less power, to diminish it, to give it the proper kind of jurisdiction, and to put more of our effort into real constitutional politics, I think we’d have a much better chance of survival.”
Hollis-Brusky recommended other changes. “I think the only way to get out of this to regularize Court appointments. And the only way to do that in a timely manner is to add four term-limited seats to the Supreme Court, and then subsequently term-limit every seat that comes up until we get back to nine.”
And for Nelson, the problems with the Court represent just one part of a counter-majoritarian system in need of reform. “Congress does not represent the will of the majority, and the Court is in theory a backstop to that. Unfortunately, it seems that the Court has been captured,” she said. “If we are talking and thinking about how we recast the Court and its power, we can’t do that in a vacuum. It has to be part of a real evaluation of our tripartite government.”