The Supreme Court is just as polarized as the rest of US politics – and this may have profound implications (original) (raw)
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Judicial Politics in Polarized Times
2014
This paper contains the introduction to the book, Judicial Politics in Polarized Times (University of Chicago Press, 2014). When the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, this book argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, this book shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, the book concludes, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
The Supreme Court Clerkship and the Polarization of the Court: Can the Polarization Be Fixed?
Green Bag …, 2009
UMEROUS COMMENTATORS have observed that the Supreme Court and the lower federal courts have become increasingly polarized over the past two decades as ideological gaps between conservatives and liberals have widened. Of course, there is no agreement about how to respond to that polarization. Many think it an inevitable-some, even a positivedevelopment, and they urge its acceptance. Others find it deleterious.
The Changing Politics of Supreme Court Confirmations
American Politics Research, 2012
Senate voting on Supreme Court nominees offers a window into macropolitical continuity and change. Clashes over confirmations once were reserved for a handful of exceptional cases, but recently have become the norm. Party cohesion in the Senate has also experienced a recent, rapid increase. An analysis of votes on 43 Supreme Court nominees reveals that senators polarize in response to rising levels of average party loyalty. The analysis further reveals that a senator who individually is more loyal to his or her party will be more likely to adopt an extreme position on confirmation, even after controlling for the effects of rising aggregate partisanship. Once the partisan trend is taken into account, our analysis contradicts the conventional wisdom that Robert Bork's nomination instituted a "regime change" with a lasting effect on Senate voting patterns.
Consensus, Disorder, and Ideology on the Supreme Court
Journal of Empirical Legal Studies, 2012
Ideological models are widely accepted as the basis for many academic studies of the Supreme Court because of their power in predicting the justices' decision-making behavior. Not all votes are easily explained or well predicted by attitudes, however. Consensus in Supreme Court voting, particularly the extreme consensus of unanimity, has often puzzled Court observers who adhere to ideological accounts of judicial decision making. Are consensus and (ultimately) unanimity driven by extreme factual scenarios or extreme lower court rulings such that even the most liberal and most conservative justice can agree on the case disposition? Or are they driven by other, nonattitudinal influences on judicial decisions? In this article, we rely on a measure of deviations from expected ideological patterns in the justices' voting to assess whether ideological models provide an adequate explanation of consensus on the Court. We find that case factors that predict voting disorder also predict consensus. Based on that finding, we conclude that consensus on the Court cannot be explained by ideology alone; rather, it often results from ideology being outweighed by other influences on justices' decisions.
On the Ideological Foundations of Supreme Court Legitimacy in the American Public
2012
Conventional wisdom says that individuals' ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court's policymaking suggests rational bases for perceiving the Court's contemporary policymaking as conservative, moderate, and even liberal.
Law & Social Inquiry, 2021
Nominations to the US Supreme Court have become increasingly important and contentious in America politics in recent decades. Reasons include the growing significance of constitutional law to the prospects of political power, accompanied by historical developments in the relative power of the competing party coalitions that have placed even more focus on the composition of the Court. Meanwhile, partisan conflict and stalemate have grown in the party systems and among We the People. In The Long Reach of the Sixties, Laura Kalman explores how the nomination struggles of Presidents Lyndon Johnson and Richard Nixon set the stage for the contemporary conflict besetting nominations and American politics more generally. Building on Kalman’s book, this review essay discusses the political and jurisprudential causes and implications of this conflict, with an eye toward what might lie ahead.
The 2020 U.S. Supreme Court and Political Identity
2021
This article aims to determine current political identity of the U.S. Supreme Court by analyzing the process of appointment of its recent Justices and their ideology. The Author claims that ideology and politics play decisive role on Court’s jurisprudence, but that it was Anthony Kennedy’s retirement in 2018 which defined the direction of Court’s adjudication for years to come. The analysis shows important role of the President and Senate in the process of indirect interpretation of the Constitution by the appointment of Justices representing certain ideology.
The Changing Politics of Federal Judicial Nominations
Congress and the Presidency, 2010
During recent decades, legislative politics in Congress has grown increasingly partisan, while nominations to federal judgeships have experienced increasing delays. How are these two trends related? Does the growing obstruction of nominations reveal a systemic change in how the Senate conducts the confirmation process, or does it reveal a change in nominees' characteristics? We find that the importance of ideological and partisan conflict is variable across levels of lower courts, and that it has grown over time as the political parties have become more internally cohesive and more polarized. In particular, we demonstrate that the effect of divided partisan control intensifies as party unity in the Senate rises.