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How Did The Courts Become So Politicized?

Perhaps no institution serves as a better example of changing attitudes towards US institutions than the judiciary, and specifically the Supreme Court. Increasingly, justices are viewed through a lens of partisanship or ideology, and they are seen as interested in achieving the policy goals of their side rather than as disinterested legal thinkers.

In the Kluge Center’s next Pillars of Democracy event, live on September 30 at 4pm, American Enterprise Institute scholar Adam White, Harvard Professor Randall Kennedy, and Boston College Professor Cathleen Kaveny will participate in a panel discussion, moderated by Russell Wheeler of the Brookings Institution, on the causes of changing attitudes towards the federal judiciary, as well as the ways that the third branch of government can win Americans’ trust back.  Free registration is available here.

Traditional ideas of law hold that judges and justices make decisions based on a dispassionate application of the law to the facts at hand, with no regard for the political ramifications of that decision. While justices may see themselves that way, they are often perceived as, essentially, politicians: political actors who want to shape the world to match an ideology, and who use law a tool to achieve that goal. While the Supreme Court is most prominently perceived as politicized, these attitudes extend to other parts of the federal judiciary.

Issues like abortion, gay marriage, affirmative action, and gun rights have all been the subjects of major Supreme Court decisions in recent decades, instituting new political realities in areas where Congress has found itself unable or unwilling to legislate. In this way, the court appears to legislate, eliciting anger or celebration from a public that sees justices as political allies or opponents.

Related to that development, the confirmation process for new Supreme Court justices has become a decidedly partisan affair. Republicans would point to the attacks on Reagan nominee Robert Bork and his ultimate defeat in the Senate in 1987 as an important turn towards partisanship, while Democrats would blame the Republican refusal to consider then-President Barack Obama’s 2016 nominee, Merrick Garland, allowing President Donald Trump to appoint Neil Gorsuch once he got into office the next year.

The Supreme Court’s place at the center of hotly-contested political issues is not new. In the 20th century, the Brown v. Board of Education of Topeka ruling, handed down in 1954, began the process of de-segregating public schools and generated intense opposition from advocates of states’ rights. And the atmosphere surrounding the court was perhaps never so politicized as in 1937 when President Franklin Roosevelt threatened to appoint new Roosevelt-friendly justices, “packing the court” to uphold his New Deal legislation.

Though court packing did not end up taking place, progressives in the 21st century have revisited the idea of adding justices to alter the makeup of the court, with the aim of reversing the effects of the appointment of Neil Gorsuch mentioned above.

In the most recent Pillars of Democracy event, Jeffrey K. Tulis of the University of Texas at Austin argued that, before the 20th century, Congress contested Supreme Court nominations more frequently. Though Congress has shown a “half century of deference to the president’s picks for nominees to the Supreme Court,” in the 19th century Congress rejected one out of every three nominees, Tulis said. And now, when congressional objections do occur, he said they are more likely to be on “lower grounds” like scandalous personal behavior, rather than judicial philosophy. Those objections are easier for the public to interpret as politically-motivated, contributing to the idea that justices are no more than political actors.

Register here for our September 30 Pillars of Democracy event and get ready to learn more about the federal judiciary’s politicization and what can be done about it.

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