- Vinch Bag-ao, MHS
What Lead To the Supreme Court’s Politicization
Article III of the United States Constitution establishes the Supreme Court and defines its jurisdiction. The most important power the Supreme Court has, judicial review -- the ability to decide in an impartial manner, whether a law is in compliance or is in violation of the U.S. Constitution -- was not written into the Constitution, but rather established during the case of Marbury v. Madison in 1803. As the use of judicial review expanded in the mid-to-late 20th Century, the Supreme Court became increasingly political. The History of the Supreme Court from the 1950s to the 1990s is important to know when it comes to understanding what makes the Supreme Court such a powerful institution in modern-day America.
Prior to the 1950s, the Supreme Court mainly took cases that involved federalism and commerce and rarely made landmark rulings on civil rights and personal liberties which meant it did not seem to wield as significant a power over the lives of citizens. This changed in 1954 when, one of the most important Supreme Court cases in American history, Brown v Board of Education, ruled that the segregation of public schools was unconstitutional as the Court’s unanimous opinion deemed that separate is inherently unequal. This ruling overturned the precedent of Plessy v Ferguson, a transportation case, which had established the separate but equal doctrine and signified Brown v Board of education as a turning point in the Court’s history.
Led by Chief Justice Earl Warren from the mid-1950s to the 1970s, the Supreme Court was dominated by liberal-leaning justices and was responsible for the significant expansion of civil rights and the rights of the accused. Examples include Gideon v Wainwright and Miranda v Arizona, which respectively afforded criminals the right to an attorney and the right to remain silent, together establishing what is known as Miranda Rights.
The outcomes of these cases caused significant backlash from conservative Americans, and in 1968, then Republican presidential nominee Richard Nixon made having a conservative court a cornerstone of his campaign. During his tenure in the White House, President Nixon appointed four Justices to the Supreme Court, the most controversial of which was William Rehnquist, who was confirmed by a 68-26 Senate vote. Many of Nixon’s other justices were approved by the Senate nearly unanimously. Despite President Nixon filling four Supreme Court seats, three out of the four Nixon Justices, Chief Justice Warren Burger, Lewis Powell and Harry Blackmun, who wrote the majority opinion in the historic 1973 case Roe v Wade, declared that women had the right to an abortion up to the point of viability where a fetus can live outside of a womb. This ruling was extremely controversial and fueled President Ronald Reagan’s determination in the 1980s to overturn the decision by either overturning the ruling, stopping federal funding for abortion, or passing a Constititional Amendment.
There is also a critical media matter to consider here. In 1986, Senate Majority Leader Bob Dole and Minority Leader Robert Byrd held a vote to allow television coverage in the Senate chamber. This decision led Supreme Court nominations to become political theater. In 1987, hours after President Reagan nominated Robert Bork, Senator Ted Kennedy made an infamous speech about Robert Bork’s vision of America. Senator Kennedy said on the Senate floor that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is-and is often the only-protector of the individual rights that are the heart of our democracy”(C-Span “Senator Kennedy Opposses Bork Nomination” 1:58-2:30). The confirmation hearings which lasted for two months became infamous and Bork’s writings and words were used strongly against him. A key moment from the nomination came when Senator Alan Simpson of Wyoming questioned Bork on why he wanted to be on the Supreme Court. He responded, “it would be an intellectual feast.” He was ultimately voted down by a 42-58 vote in the Senate. However, when Clarence Thomas was nominated by President George H.W. Bush in 1991 to replace Thurgood Marshall, senators of his party were ready. Knowing what Supreme Court nominations had become, the GOP advised Thomas to answer questions with vague answers. His path towards confirmation was obstructed by a testimony from lawyer and academic, Anita Hill, who alleged that Thomas had sexually harassed her. Despite sympathies towards her, a Democrat-controlled Senate very narrowly voted to confirm Thomas by a 52-48 vote. This bears special relevance to today as President Joe Biden was at the time head of the Senate Judiciary Committee for both Bork and Thomas hearings and has been criticized for the handling of the Anita Hill testimony.
The decisions of the Supreme Court in 1954 and 1973 along with the Supreme Court nominations in 1987 and 1991 ultimately led to the modern partisanship of the Supreme Court, most recently exemplified in Amy Coney Barrett’s nomination. Being aware of this history of the Supreme Court’s decisions and nominations is critical into understanding how the composition of the Court and the way Justices may vote on certain issues has become a massive motivator for the Democratic and Republican parties. This partisanship has been fueled not only by current events but also by History, judicial and political philosophy and the immense powers the Court possesses.
“Modern Partisanship in the Supreme Court"
When Ruth Bader Ginsburg was nominated in 1993 by President Clinton, she was confirmed by a 96-3 vote in the United States Senate. 27 years later, her successor Amy Coney Barrett was confirmed by a 52-48 vote in the Senate, split almost completely along party lines. The polarization of the Supreme Court has often correlated with increasing partisanship in the Senate over the past thirty years. Because the Supreme Court has the power of Judicial Review, which can declare laws Unconstitutional, both political parties have realized that having a majority in the Supreme Court can help them politically, which is why Amy Coney Barrett’s confirmation to the Supreme Court was so controversial: The confirmation replaced a liberal leaning Justice with a conservative leaning Justice, changing the balance of the Court from five to four to six to three.
In 2016, President Obama nominated Merrick Garland, a highly respected judge, after the death of Associate Justice Antonin Scalia. Garland did not receive a hearing from the Senate Judiciary Committee, because Senate Majority Leader Mitch McConnell and other Senate Republicans hoped the next administration, which would take control of the White House in less than a year, would put forth a conservative nominee. In an unprecedented decision, a Senate controlled by the political party opposing the President refused to screen the nominee, showing the extent to which the process for appointing Justices to the Court had become a political tool. This was already true for Obama’s nominations for the Circuit and District Courts, as Mitch McConell also refused to hold votes for many of the nominees. This was unprecedented since in previous administrations both Republican and Democratic, when the Presidency and the Senate were controlled by different political parties, the Senate would still vote to confirm at least 50 of the President’s judicial nominees in the last two years of the administration. However in the last two years of the Obama administration, only twenty Judges were confirmed.
An administration later, the confirmation hearings in 2018 when Brett Kavanaugh was nominated by President Trump to replace Anthony Kennedy became very partisan. When the hearings began and were broadcasted by C-Span cameras on September 4, then Senator Harris immediately interrupted Chairman of the Senate Judiciary Committee, Chuck Grassley, as he opened the hearing, because of a 42,000 page document that the Democrats did not have ample time to review as it was released to the Committee the night before the hearing. Soon after, Senator Richard Bluementhal moved that the committee be adjourned, which sparked a protest with the protestors saying that the hearing was a “A mockery and a travesty of Justice!”
The height of the hearing occured when Dr. Christine Blasey Ford testified before the Senate Judiciary Committee on September 27th that Brett Kavanaugh had sexually harassed her 36 years prior. Ford said in her statement that though she could not account for everything that occured when she was allegedly groped by Kavanaugh, that at the moment, she had thought that he would rape her. When Kavanaugh was called by the Committee on that same day to respond to Ford, he denied the accusations, pointing to the fact that the friends with whom Ford claimed to have attended the party in question, did not recall the party. “This confirmation process has become a national disgrace,” Kavanuagh asserted, “there has been a frenzy on the left to come up with something, anything to block my confirmation.” Senator Lindsey Graham seemed to agree with Kavanaugh’s analysis of the hearing, accusing Senators of playing politics:
“What you want to do is destroy this guy’s life, hold this seat open and hope you win 2020. You said that. Not Me. You’ve got nothing to apologize for. When you see Sotomayor and Kagan tell them I said all because I voted for them. I would never do tot hem what you have done to this guy. This is the most unethical sham since I have been in politics.”
Despite the accusations from Dr. Ford, On October 6, 2018 the Senate narrowly voted 50-48 to confirm Brett Kavanaugh with Vice President Pence presiding over the vote.
In September 2020, not long after the death of the iconic Justice Ruth Bader Ginsburg, often considered the most liberal justice on the Court, President Trump nominated Amy Coney Barett, a staunch conservative who admired the late Antonin Scalia, himself well known for his originalist interpretation of the Constitution. The fight to fill Justice Ginsburg’s seat immediately fell into political conflict, as her confirmation would solidify the Court’s already conservative leanings from 5-4 to 6-3. At the time of Ginsberg’s death, the 2020 Presidential Election was going to be held in under two months and that the possibility of election disputes being heard by the Court and the legality of the Affordable Care Act would be in question. Because Republicans knew that filling the seat would greatly benefit them, they rushed the usual months-long nomination process for Amy Coney Barett, confirming her just under a month after her nomination. The Democrats, in the minority, accused the Republicans of hypocrisy for breaking the precedent they established right after Justice Scalia’s death, but it was not enough to stop the confirmation of Justice Barett. She was confirmed by a 52-48 vote in the Senate and sworn in on October 26, 2020, eight days before the election on November 3rd.
The Supreme Court is rapidly becoming the most political, unelected branch of the United States government. The power of Judicial Review gives The United States Supreme Court incredible influence when compared with Supreme Courts around the world, many of which cannot write laws from the bench through Court majority opinions nor overturn state nor federal statutes. Both political parties' desires to wield this influence has made recent Supreme Court appointments controversial. With Congress becoming increasingly polarized and with both political parties unable to establish even a basic consensus, this may undermine the Judiciary's ability to be impartial. Although most Supreme Court decisions are unanimous, controversial decisions are more likely to see votes fall along partisan lines. These cases receive press coverage, and this is what politicians fight over. It is too early to say what impact Amy Coney Barrett will have on America, it is certain to be significant and long-lasting.
“About the Supreme Court.” United States Courts, www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about.
History.com Editors. “Ronald Reagan on Roe v. Wade.” History.com, A&E Television Networks, 30 May 2012, www.history.com/topics/us-presidents/ronald-reagan-on-roe-v-wade-video.
“Senator Kennedy Opposes Bork Nomination.” c-Span.org, C-SPAN, www.c-span.org/video/?c4594844%2Fsenator-kennedy-opposes-bork-nomination.
“Supreme Court Nominations (1789-Present).” U.S. Senate: Supreme Court Nominations (1789-Present), 04 Nov. 2020, www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm.
Totenberg, Nina. “Robert Bork's Supreme Court Nomination 'Changed Everything, Maybe Forever'.” NPR, NPR, 19 Dec. 2012, www.npr.org/sections/itsallpolitics/2012/12/19/167645600/robert-borks-supreme-court-nomination-changed-everything-maybe-forever.