The US Supreme Court: The Prominence of Partisanship, Nominations and Appointments in Recent Times

The US Supreme Court was created in accordance with Article 3, Section 1 of the US Constitution and by the authority of the Judiciary Act 1789.[1] It first convened a year later in 1790 and it took a further year before cases were heard owing to the organisational nature of its first sittings. August 1791 was when the court handed down its first decision, in West V. Barnes, a case which was ultimately decided based on procedural issues.[2] The court has existed in approximately the same form since its primitive years, with varying numbers of justices until the Judiciary Act of 1869, making the number of justices nine and remaining as such to this day. This was not without attempts by presidents since to alter the number in their favour, be it for immediate or future political gain, but all proved ineffective.[3]

The court's objective and values can be seen in the oaths incoming justices are required to take. They speak of defending the US Constitution against both foreign and domestic enemies, and of administering justice both faithfully and impartially.[4] As the role of a Supreme Court Justice is a lifelong term, only ending with retirement or death, these oaths are paramount.[5] The impartiality and professionalism of the justices once appointed are far from the focus of this piece, rather the means and methods by which justices find themselves in such a position. Arguably it’s in the nomination and appointment of justices where present and future cases are won and lost, owing to the partisan nature of Supreme Court Justice voting.[6] I will discuss the lengths to which the US Houses of Government and presidents have in recent times, and may again, influence the court’s decision-making abilities through the nomination and appointment procedures.   

The president has ultimate freedom, be it with Senate recommendations, to choose anybody they want for nomination, in accordance with the Appointments Clause found in Article 2, Section 2 of the Constitution. There is no clearly defined qualifications necessary for nomination and no qualification requirements can ever be set for the role by the Senate.[7] While the president is free to choose their nominee, it is put to a vote in the Senate. A simple majority is required for the successful nomination of the candidate, a relatively recent development owing to the Trump administrations’ strained attempts to get Justice Neil Gorsuch appointed in 2017.[8] With senators becoming more and more likely to follow political lines in confirmation voting, the simple majority almost ensures a candidates confirmation.

The court listens to cases both orally and through written submissions and delivers judgements in the form of a vote, often splitting the nine justices along ideological lines, with conservatives taking an originalist approach to constitutional issues, and liberals being more willing to find context within the constitution.[9] There is exceptions of course, often the vote doesn’t spilt completely evenly, but the more contentious and important decisions tend to follow ideological fissures.[10] This is why the make-up of the court and ratio of conservatives to liberals is so important for politicians, to get their ideologies and campaign promises achieved.

It is with the aforementioned Justice Neil Gorsuch ‘saga’ where I will begin the examination of political influence on the nomination and appointment processes of the court. While it may have been during Donald Trump’s presidency that the contentious nomination of Justice Gorsuch occurred, the issues stemmed from former President Barack Obama’s reign. President Obama had one year left in office when the death of Justice Antonin Scalia occurred. Justice Scalia was known as a conservative justice, having been appointed by the Republican President Ronald Reagan in 1986.[11] Obama, a Democrat, could have appointed a liberal candidate in Justice Scalia’s now vacant seat, further strengthening the liberal psyche of the court. Instead, President Obama chose Merrick Garland, a centrist in comparison to some of the candidates, making the nomination more palatable for the Republican Senators.[12] This wasn’t the first time Garland was considered for a position, having been previously interviewed in 2010, and also receiving universal support with Republican Senator Orrin Hatch calling him "a consensus nominee" and hypothesising he would receive full Senate support if he was to be nominated.[13] Six years later fellow Republican Mitch McConnell did everything in his power to block and prevent the nomination of Merrick Garland and any candidate President Obama put forward, hoping and successfully determining the next president would be from his party and the new justice could be a true conservative, not a centrist compromise.[14]

His contested precedent was the “Biden rule”, referencing a 1992 speech by, at that time, Senator Joe Biden. Biden had stated that then President Bush should wait until after the next election if a vacancy was to come about during his final year or at least nominate an acceptable candidate that could receive bipartisan support, a similar approach taken by Obama in 2016. This was merely a response to a hypothetical question and was never an actual situation in which Biden had acted, resulting in Senator McConnell’s use of it very unpopular amongst politicians and scholars alike.[15]

President Trump won the next election and did as was expected, nominating a conservative candidate in Justice Gorsuch. Democrats filibustered the confirmation vote, meaning the necessary two thirds majority for confirmation could not be achieved.[16] Republicans, to get the last word on the issue in 2017, but to open the door to more problems down the line, invoked the “nuclear option”, effectively abolishing the requirement for a two thirds majority, allowing a simple majority to be enough for appointment.[17] It must be said the same option had been utilised years earlier by Democrats for the purpose of appointing lower court justices, but with the exception that it didn’t apply to Supreme Court Justices.[18]

The simple majority was more necessary then ever when President Trump nominated Amy Coney Barrett, a popular choice amongst Republicans and the Christian right, four months before the end of his term and the 2020 presidential elections. Unsurprisingly, Democrats were unsupportive of the nomination, due to Senator McConnell’s actions in 2016 when President Obama nominated Garland with ten months left in his term.[19] While Barrett was suitably qualified and supported by the independent organisations dedicated to vetting incoming nominees, the procedural nature and associated timeframe of her nomination was a source of consternation.[20] This resulted in Barrett being the first justice since 1870 to be confirmed without a single vote from the Senate minority party. Then Minority House leader Senator Chuck Schumer, whose political career began in the 1970’s, described it as the most “illegitimate process” he had ever witnessed in the state.[21]

The significance of the appointment, beyond showing hypocrisy can be successful, was the fact Barrett replaced the late Justice Ruth Bader Ginsburg, a long serving liberal and important part of the court for Democrats. This left the ideological balance heavily in favour of Conservatives and Republicans, with a 6-3 split.[22]

The appointment of Justice Brett Kavanaugh, two years before Barrett’s appointment, had enabled Barrett to tip the scales to a 6-3 split, as Kavanaugh had replaced Justice Anthony Kennedy, a conservative justice who could swing depending on the case at hand. The court had been evenly poised for many years, but with the appointment of Kavanaugh, closely followed by Barrett, the pendulum very much swung to the red, without returning.[23]

The courts own credibility and reputation can be negatively affected by a overly partisan nominee, one who is unapologetic and clear in their determination to vote in line with their ideologies and political views.[24] It’s an issue which can affect both Democrats and Republicans and as Carrington and French state “the legitimacy of the Supreme Court is not as stable as the conventional wisdom might suggest”.[25] The appointment of Kavanaugh could be considered as much, with his comments during his confirmation hearings, accusing Democrats of “a calculated and orchestrated political hit”, supposedly seeking “revenge on behalf of the Clintons”.[26] The oath of impartiality is one which may conflict with such accusations against those who don’t align ideologically with you.

The simple majority again played a decisive role in the recent nomination of Justice Ketanji Brown Jackson, a liberal minded judge nominated by President Joe Biden. The now Democrat led Senate voted and confirmed the appointment of Brown, 53-47.[27] While it was a successful nomination for Democrats, it does little to alter the dogmatic outlook of the court as Brown is replacing fellow liberal Justice Stephen Breyer.[28]

With decisions in contested areas such as abortion rights, gun rights and the separation of church and state upcoming for the court, the political alignment of its members should not influence said members ability to actively listen and engage with both sides of the argument. Considering the current partisan nature of the court, it is unlikely those in the ideological minority will be successful for a long time to come.

[1] US CONST art III, § 4.

[2] West v. Barnes 2 US 401 (1791).

[3] William E. Leuchtenburg, The Supreme Court Reborn : The Constitutional Revolution in the Age of Roosevelt (Oxford University Press USA – OSO 1996) 82.

[4] 5 USC 3331 (1966).

[5] US CONST art III, § 1.2.1.3.

[6] James B. Cottrill and Terri J. Peretti, ‘The Partisan Dynamics of Supreme Court Confirmation Voting’ (2013) 34 The Justice System Journal 15.

[7] US CONST art II, § 2.2.

[8] Gareth Morley, ‘Law as politics, politics as law: Neil Gorsuch and the future of the U.S. Supreme Court’ (2017) 41 Inroads 96.

[9] Richard L. Hasen, ‘Polarization and the Judiciary’ (2019) 22 Annual Review of Political Science 261.

[10] Ibid.

[11] Paweł Laidler, ‘The 2020 U.S. Supreme Court and Political Identity’ (2020) 68 Krakow: Ksiegarnia Akademicka 215, 225.

[12] Ibid.

[13] Editorial, ‘Merrick Garland for the Supreme Court’ The New York Times (New York, 17 March 2016) 24.

[14] Paweł Laidler, ‘The 2020 U.S. Supreme Court and Political Identity’ (2020) 68 Krakow: Ksiegarnia Akademicka 215, 228.

[15] C. Eugene Emery Jr, ‘In Context: The 'Biden Rule' on Supreme Court nominations in an election year’ (PolitiFact, 17 March 2016) <https://www.politifact.com/article/2016/mar/17/context-biden-rule-supreme-court-nominations/> accessed 5 May 2022.

[16] Josh Chafetz, ‘Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past’ (2017) 131 Harvard Law Review 96, 109.

[17] Ibid.

[18] Heather Ba, Christian Cmehil-Warn and Terry O Sullivan, ‘The Contemporary Presidency: The “Nuclear Option” Has Fizzled, Again: Here's Why and What to Do about It’ (2020) 50 Presidential Studies Quarterly 889, 891.

[19] Editorial, ‘Merrick Garland for the Supreme Court’ The New York Times (New York, 17 March 2016) 24.

[20] Debra Cassens Weiss, ‘Why Amy Coney Barrett got a 'well qualified' rating from ABA standing committee’ American Bar Association Journal (Chicago, 15 October 2020).

[21] ‘Schumer Floor Remarks On The Threat Posed By Judge Barrett To Americans' Health Care And Fundamental Rights And Senate Republicans Historic, Illegitimate And Unprecedented Rush To Confirm Judge Barrett To The Supreme Court Days Before Presidential Election’ Congressional Documents and Publications; Washington (Washington, 22 October 2020).

[22] Donald Alexander Downs, ‘Supreme Court Nominations at the Bar of Political Conflict: The Strange and Uncertain Career of the Liberal Consensus in Law’ (2021) 46 Law & Social Inquiry 540.

[23] Ibid.

[24] Christopher N. Krewson and Jean R. Schroedel, ‘Public Views of the U.S. Supreme Court in the Aftermath of the Kavanaugh Confirmation’ (2020) 101 Social Science Quarterly 1430.

[25] Nathan T. Carrington and Colin French, 'One Bad Apple Spoils the Bunch: Kavanaugh and Change in Institutional Support for the Supreme Court' (2021) 102 Social Science Quarterly 1484, 1493.

[26] Michael Kranish, Emma Brown and Tom Hamburger, ‘Kavanaugh takes partisan turn as he lashes out at ‘search and destroy’ Democrats’ The Washington Post (Washington, 27 September 2018).

[27] Andrew Villeneuve, ‘Ketanji Brown Jackson has been confirmed to the United States Supreme Court’ (Northwest Progressive Institute Advocate, 7 April 2022) <https://www-proquest-com.nuigalway.idm.oclc.org/docview/2657468355?pq-origsite=primo> accessed 5 May 2022.

[28] David G. Savage, ‘Justice Breyer, reliable liberal voice on high court, to retire; Move allows Biden to make 1st appointment to the bench’ The Los Angeles times (Los Angeles, 27 January 2022) 1.