Partisan politics ‘seep’ into top court

Jun 12, 2017

By Makenzie Huber

NNA News Fellow | South Dakota State University

The fight in the Senate and between the executive branch on justice nominations shines a light onto an increasingly divisive and partisan nomination process.

Judge Neil Gorsuch was confirmed to the U.S. Supreme Court after a year-long political struggle that ended with a showdown concerning Senate rules.

President Trump’s nomination draws attention to the Court and its perceived conservative tilt, while it struggles to remain separate from politics.

“I think the justices do their very best to be fair-minded and not just following an ideological or political preference in making their decisions, but the political surroundings seep into the process,” said Tony Mauro, a long-time Supreme Court correspondent, currently with the National Law Journal.

The Supreme Court is increasingly seen through a partisan lens in a turbulent political atmosphere. From the nomination process to court rulings and the public’s reaction, public officials, scholars and professionals see politics affecting this long-established independent branch.

Mauro, who has covered the Supreme Court for almost 40 years, said he’s seen a trend among justices to vote in “predictable ways according to the politics behind their appointment.”

Sen. John Thune, R-SD, said he has seen a similar trend.

He’s helped appoint five justices to the Supreme Court during his time in Washington. The Senate reviews each nominated judge’s records and uses that to assume the type of constitutional philosophy the judge will take if appointed.

“In all circumstances, I can tell whether they’ll be a liberal or take a more conservative tack,” Thune said.

The more liberal judges follow a “living document” philosophy, while conservatives follow a “constitutionalist” philosophy, he said.

“I think generally most liberal judges, justices or courts tend to be more expansive in their view of what the role of a court and judge should be and try to legislate from the bench,” Thune said.

Trevor Burrus, a research fellow for the Cato Institute’s Center for Constitutional Studies, disagreed. Believing certain justices agree for political reasons, while other justices line up because they believe they’re “correct” isn’t congruent with the mission of the court.

“That kind of stuff is complete horses**t and it really damages the court as an institution,” Burrus said. “People need to understand that it’s not a political body, it’s a body composed of people with philosophies.”

Burrus sees people judging the Court’s decision based on that person’s opinions of what is and isn’t constitutional. That doesn’t mean just because a justice’s interpretation is different that he or she is biased, he said. 

“The problem is that you aren’t biased to the side that we want you to be,” Burrus said.

But “courts are getting more and more politicized,” said Thune. “The job of a judge is to interpret the laws as written, not what they’d like to have them written as.”

Thune’s opinion, and similar opinions, are there in part because of the U.S’ current political culture, Burrus explained.

The Supreme Court received its lowest-ever approval rating, 42 percent, in a July 2016 Gallup poll.

A poll conducted in September 2016, found a 45 percent approval rating.

“I think that there are many things that cannot be put back in the box now,” Burrus said. “We have an increasingly schematic, hate-filled governance on both sides in terms of how much people understand the opinions they don’t agree with.”

This comes with both the legislative and executive branches of government creating situations in which the Supreme Court must take a stance on a politically charged issue, Burrus said.

Rep. Kristi Noem, R-SD, said she believes the Supreme Court is filled with justices who have a commitment to the Constitution.

“Most justices work hard not to become political when making those decisions,” Noem said. “People describe them as liberal or conservative—that’s the reality people focus on. I don’t think justices look at them as political decisions, but rather interpretations of the cases in front of them, and their No. 1 responsibility is to interpret the Constitution.” 

Despite the justices’ independence from external pressure, from other branches of government or the public, the court’s decisions will be observed through a partisan lens, Noem explained.

Because of this, political branches might take efforts to correct the partisanship of the court. 

The Senate’s recent change in its nomination procedures, lowering the amount of votes needed to approve a Supreme Court nomination, could change the dynamic of the court.

“I could see where if you’re president and know you don’t have a threat of 60 votes, the president may temper a little bit with who you might appoint to the court,” Thune said, assuming one party controls the Senate and the White House.

Thune said he understands that because of the Senate’s rule change there might not be another “Boy Scout” nominated like Gorsuch.

Mauro anticipates the next nomination to the Supreme Court to be worse than Gorsuch’s nomination, because it will likely switch a liberal vote to a conservative vote.

“When that nomination comes along, it will be World War III in Washington,” Mauro said. “I guarantee it.”