The latest session of the Supreme Court saw a number of contentious decisions — decisions that were made amidst a very partisan political climate.
Americans are losing faith in all branches of government. Support for Congress is at an all time low of 7 percent. President Barack Obama’s approval rating stands at 41 percent in the wake of intensifying sectarian violence in Iraq — a score near his personal low of 40 percent, but significantly better than the job performance scores earned by George W. Bush and Richard Nixon at the corresponding moments of their presidencies. Meanwhile, the public’s confidence in the president is 29 percent. Further, the public’s confidence in the Supreme Court rests at 30 percent, which is not a record low nor a significantly strong score. The much-lower score of Congress is not surprising; Americans have always expressed lower confidence in the legislative branch than in the judicial or executive branches. Nor is it surprising that Americans are dissatisfied with their leaders. While partisan politics in Congress are the result of a more polarized electorate, the resulting stalemate is nonetheless problematic. Similarly, the president’s loss of popularity has damaged “his ability to govern and rally the public behind his favored policies,” as Gallup noted.
Unlike Congress and the president, the Supreme Court — with its nine unelected justices who serve indefinite terms without facing the rigors of elections — is immune to public pressure. Seemingly, that immunity means the court should not be concerned about its 30 percent approval rating. But as Gallup noted in the analysis of a June survey of public confidence in government institutions, the Supreme Court’s loss of public confidence should be concerning because it “threatens and complicates the U.S. system of government.” Gallup’s findings beg several important questions: how significant is the public’s loss of confidence; is this loss of confidence merely part of a broader disillusionment with government or has there been a profound changed within the court; and, are justices guiding American politics rather than simply interpreting the constitution?
The results mark a new low in the public’s confidence in the United States’ highest court, a measure the research firm first began tracking in 1973. The highest reading ever recorded came in 1985, when 56 percent of Americans expressed confidence in the institution. In 1988 — after President Ronald Reagan had made all of his court appointments, nominating Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor, and elevating William Rehnquist to Chief Justice — the same measure of confidence was recorded. The years between 1973 and 2006, the nation’s highest court averaged ratings in 40 and 50 percent range. But in 2007, after George W. Bush appointed John Roberts as chief justice and Samuel Alito as an associate justice, the court’s score dropped “sharply to 34 [percent], along with similar declines in confidence in the other two branches of government.” Since that decline, Americans confidence in the Supreme Court has not risen higher than 40 percent.
The public’s loss in confidence in the Supreme Court — while nowhere near as drastic as its disillusionment with Congress — is a likely indication that Americans do not believe the court reflects their opinions on major issues. One way to explain this problem is to say that the court has not adapted fast enough to changes in public opinion on key issues like abortion, civil rights, and same-sex marriage. But any analysis of the Supreme Court’s loss of public confidence must also take into account the question of whether the partisan nature of American politics has killed the judicial branch’s impartial nature.
Remaining above party politics is considered to be essential to the court’s main task: interpreting law and the U.S. constitution. In a 2011 interview with USA Today, Ruth Bader Ginsburg, who is considered to be a liberal-leaning justice, said: “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.” Yet, the rulings made by the Supreme Court in 2000’s Bush v. Gore, in 2010’s Citizens United v. Federal Election Commission, in its 2012 Affordable Care Act ruling, and in 2013’s Shelby County v. Holder, which overturned two provisions of the Voting Rights Act of 1965, have led to accusations that justices are guiding American politics based on their own ideologies rather than merely interpreting the U.S. constitution.
Before the Supreme Court upheld the majority of the Affordable Care Act, except for the mandated expansion of Medicaid, The Washington Post’s Ezra Klein described how the relationship between the Supreme Court and politics has grown closer. “The people who serve as judges on the Supreme Court have been vetted by political parties, have often worked for political parties, frequently have loyalties to people in political parties who helped their career, and spend much of their time in Washington, where they sort into social groups they find congenial,” he wrote. “They are, in other words, more, not less, political than most Americans.”
Of course, as politics have become a greater part of the judicial process, appointing new members to the court has grown into an important political tool for legislators and the president.
But this is problematic, at least according to former acting solicitor general Neal K. Katyal. “Even in this hyperpartisan age there is a difference between law and politics,” he wrote in an opinion piece for The New York Times. Legal experts have highlighted the importance of published judicial dissent. But Katyal believes that “unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship. The best illustration of this in the modern era is Brown v. Board of Education, in which the court unanimously declared racial segregation in education to be unconstitutional. When the justices forge common ground, it signals to the nation the deep-seated roots of what the court has said and contributes to stability in the fabric of the law.”
The other side effect of the divided court is that is “it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes,” University of Texas law professor Justin Driver told The New York Times. “If that perception becomes pervasive among today’s law students, who will become tomorrow’s judges, after all, it could assume a self-reinforcing quality.”
It is not unusual for presidents to want their influence to reach the Supreme Court, and nominations were never free from political considerations. Throughout the history of the United States, presidents have attempted to calibrate the court in their favor. For example, after the court struck down several New Deal measures as unconstitutional, Franklin D. Roosevelt proposed the Judicial Procedures Reform bill of 1937, which would have given the president the power to appoint additional justices. He was accused of trying to pack the court, and the legislation died in the Senate. But Roosevelt’s efforts show that the Supreme Court has long been a part of the political maneuvers of the White House. Yet, jurisprudence scholarship does suggest that something has changed: the court is becoming more partisan. According to a 2009 study conducted by Richard Posner and William Landes, John Robert’s court has the most partisan bench in history. The rising wave of partisanship that has swept through Congress and the White House is matched by the growing polarization of the Supreme Court.
The growing polarization manifests itself in the long string of 5-to-4 decisions made by the Roberts Court. In two of the most recent courts, more than 20 percent of all decisions decided by 5-to-4 votes, and that means that the rulings that have the greatest potential to influence the lives of the American public are regularly decided by the narrowest margin. Furthermore, legal scholars consider those narrow 5-to-4 decisions to be the most political, while research shows that those rulings often overturned by later courts. Even more importantly, they do not convey the same moral authority as more unanimous opinions.
That concerns Chief Justice John Roberts, whose court has decided more cases by the 5-to-4 margin than any other. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told The New Republic‘s Jeffrey Rosen in 2006. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” During his 2005 confirmation hearing he also told lawmakers that he would attempt to implement “a greater degree of coherence and consensus in the opinions of the court,” citing former Chief Justice Earl Warren’s leadership in Brown v. Board of Education as an example.
The Roberts Court’s partisan, 5-to-4 decisions have upheld the constitutionality of the Affordable Care Act’s individual insurance mandate as well as an individuals’ right to gun ownership, limited class-action suits as well as an employee’s right to file a pay discrimination, and allowed unlimited corporate and union campaign spending. Votes on immigration, arbitration rights, voting rights, and the legality of legislative prayer were similarly divided.
Unsurprisingly, analysis conducted by Posner and Landes showed that the more ideologically polarized the Court is — meaning the greater the divide between the most conservative justice and the most liberal justice — the more often cases are decided by a 5-to-4 margin. This court is also the most conservative since the New Deal. Posner and Landes ranked 43 Supreme Court justices who served between 1937, when dissents were rare and justices rarely divided along party lines, and 2006, in terms of political ideology. They found that four of the five most conservative justices — Clarence Thomas, Antonin Scalia, John Roberts, Samuel Alito, and William Rehnquist– were sitting on the bench as of 2005, while the current liberal-leaning justices do no place in the top five. Ruth Bader Ginsburg was the only sitting judge to rank among the top ten most liberal justices.
The conservative drift began in the 1970s. Presidents began caring more about ideology and stopped choosing nominees based on legal ability, or to cater to ethnic or religious groups, or to repay political favors. Of course, politics did play a role in Supreme Court nominations before the American political system began to polarize, but ideology was not the only consideration. When choices were less political, Republican presidents often appointed justices who were, or became, liberals; Dwight D. Eisenhower nominated Warren and William J. Brennan Jr., while Richard Nixon nominated Harry A. Blackmun. The last across-the-aisle appointment came in 1990 when President George H. W. Bush nominated Justice David H. Souter. It has been more than fifty years since a Democratic president last appointed a justice who regularly voted with the conservative members of the court. Now there is no Democrat Supreme Court appointee who is more conservative than any one of the Republican appointees.
A study conducted by Pew Research found that conservative Republicans are more likely to see court as liberal, while liberal Democrats are more likely to view it as conservative. But most legal scholarship shows a marked conservative slant. In an interview with Bill Moyers, who served as the White House press secretary in the Johnson administration, New York Times columnist and Supreme Court expert Linda Greenhouse contextualized the polarization of the court. “I think it’s hard for anybody looking at this court objectively to come away not thinking that it’s a court in pursuit of an agenda,” she said. “And I’m sorry to say, I think that agenda maps on pretty closely to a Republican Party platform in things that — in the hot button issues that many of us care the most about.”
Moyers also spoke with Slate senior editor Dahlia Lithwick, who believes the Roberts Court has not “done anything other than systematically unravel voting rights, women’s rights, workers’ rights, [and] environmental progress.”
The Supreme Court’s 2012 vote on the Affordable Care was notably different; it was a split 5-to-4 decision, but Roberts — who The New Yorker has described as a “professional Republican” — did not side with the conservative judges as usual. Instead, he sided with Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan in deciding the law is a valid exercise of Congress’ power to tax. But while some political analysts saw that vote as an effort to temper allegations that the Court has become a partisan political institution, no one saw his healthcare ruling as a deviation from the “strategic course” that Greenhouse described in her interview with Moyers. “The court has — is in the process of sort of hijacking the First Amendment free speech principle as a tool of deregulation in a startling way,” she explained.
The idea of mandated health insurance, enforceable through a tax, had its roots in the Republican party, and as a number of analysts have opined that the penalty was well within the federal government’s power to tax thanks to a 1937 court decision recognizing that the Commerce Clause of Article I of the Constitution gave Congress the ability to address national economic problems. But even though Roberts voted to uphold the insurance tax, his opinion worried some liberals. The vote not only protected him against accusations of partisanship for some time, it also created a precedent. As Jeffrey Toobin noted in The New Yorker, Roberts’ opinion created a narrow conception of the Commerce Clause. Ginsberg called his reading of the Commerce Clause “stunningly retrogressive,” meaning his interpretation is in line with the pre-1937 state of the law. In theory, that reading could put consumer protection laws, like federal consumer safety, in danger of legal challenges.
But the court’s ruling that as a closely held company, Hobby Lobby, was not required to provide insurance (as per the yet-to-be implemented employer mandate) that covered all the birth-control procedures mandated by Obamacare has once again spawned allegations of partisanship. Of course, any decision regarding the Affordable Care Act and birth control was bound to be polarizing. Arguments against the decision have engulfed the media and Washington in the weeks since the ruling was handed down, and include the slightly contentious assertion that it signals a possible ban on contraceptives as well as the more mainstream argument that it violated the constitutional separation of church and state. There are also privacy and affordability concerns.
The key question for the Supreme Court justices was whether providing mandated insurance coverage of contraception was a violation of religious freedom, and more specifically the Religious Freedom Restoration Act of 1993. Together with other recent decisions, the Supreme Court is systematically effacing the First Amendment’s religious freedoms, according to Greenhouse. For that reason, she argued in an opinion piece for the Times, that the Hobby Lobby decision should be analyzed alongside the court’s other major religion case of the term: Town of Greece v. Galloway, which came eight weeks earlier and was decided by the same 5-to-4 margin. The court rejected the complaint of two non-Christian plaintiffs who argued a Christian religious observance should be excluded from official town business. “Compare this breezy dismissal of a complaint by two actual people to the extreme solicitude five members of the court displayed two months later toward Hobby Lobby Stores, Inc., a multibillion-dollar corporation with 13,000 employees in some 500 locations,” wrote Greenhouse.
To many like Greenhouse, these recent decision by the court look like with an agenda to promote corporate personhood.
More From Wall St. Cheat Sheet:
- 7 Glimpses of Immigration Conflict in the U.S.
- Here’s Why Hillary Clinton Is Wrong About Snowden
- Here’s Where Bush’s Fight Against Terrorism Went Wrong
Follow Meghan on Twitter @MFoley_WSCS