It is no secret to pro-democracy advocates and authoritarian rulers alike that an independent judiciary is a fundamental protection against authoritarian regression. Indeed, an independent judiciary provides vital checks on legislative and executive power, blocking authoritarian tendencies to consolidate power and remove term limits [1]. A judiciary predisposed to partisanship, however, may serve as a tool for legitimizing anti-democratic legislation [2] (i.e. laws and decrees that would allow for the consolidation of power), especially when that partisan slant aligns with the interests of the incumbent executive. Therefore, if one wants to ensure the preservation of democracy, defending the autonomy of the judiciary is of the utmost importance, while conversely, if one wants to pave the way towards authoritarianism, a good starting point would be to infiltrate partisanship into the judiciary.

Considering the above, the apparent increase in partisanship in the United States Supreme Court should be alarming to anyone who supports democratic ideals. Upon the successful nomination of Elena Kagan in 2010, each of the Justices appointed by Republican Presidents have aligned more with the ideological right than all of the Justices appointed by Democratic Presidents [3]. Before 2010, never had such distinct division along ideological lines existed among Supreme Court Justices. Which begs the question, how has an institution that has been relatively free from party pressures for the first two hundred years of its existence become split along partisan lines? This article points to the steadily increasing polarization between the two major parties as a key factor.

To anyone even marginally involved in politics, it is painfully apparent how partisan politics in the United States have become. Cross-cutting cleavage – a stabilizing feature of functional democracies which exists when citizens’ political principles are formed by inclusion in multiple identities (e.g. class, race, religion, region) – has effectively disappeared as both parties have become more and more ideologically homogeneous and define themselves in opposition to each other [4]. Republicans are mainly rural, anti-gun control, anti-immigration, and anti-choice, while Democrats are mainly urban, pro-gun control, pro-immigration, and pro-choice, et cetera. By simply knowing someone’s party alignment, one can often correctly assume the vast majority of their stances on hot-button issues.

The actions and voting records of elected officials, specifically those in Congress, further demonstrate partisanship. The chart below illustrates the progression of ideological polarization in Congress since 1949. Myriad factors have led to this dramatic polarization, including: “the stratifying wealth distribution of Americans; boundary redistricting; political realignment in the American South; the shift from electing moderate members to electing partisan members; a movement by existing members towards ideological poles; and an increasing political, pervasive media [5].”

Shifts in Partisanship Since 1949:

The above, coupled with the truly egregious – and ever increasing – amount of money required to compete in a Congressional election, gives contemporary party machines the unprecedented ability to dictate how their representatives vote. If the party is dissatisfied with the way one of their representatives vote, they may divert funding from the incumbent’s campaign and/or endorse another candidate more willing to provide unquestioning support. For all intents and purposes, blackmailing them to guarantee that the will of the party machine always persists.

Congressional and Presidential Campaign Expenditures Since 1998:

So how does this partisanship influence the Supreme Court? Did the Founding Fathers not establish an institution sufficiently independent from the other branches to insulate it from party bias? Well, any protection put in place has been undermined by the recent shift of presidents to nominate candidates not mainly on their qualifications or aptitude for the position. They now place undue weight on the candidate’s ideological preferences when making their decisions [8]. Before the homogeneity of the modern Democratic and Republican parties, nominations based squarely on ideology would have incited confirmation battles not only between the two parties but also within the parties themselves, as the existence of cross-cutting cleavages necessitated more moderate nominations. However, because of the legitimate fear of losing access to the funds necessary to run a campaign, Senators, with few exceptions, keep their mouths shut and vote how their party determines.

This trend was exemplified by the last nomination to the Court. Justice Brett Kavanaugh, whose 12 year stint in the U.S. Court of Appeals for the D.C. Circuit was defined by conspicuously conservative rulings in favor of corporations, the wealthy, and the powerful, was subject to an examination by Senate Judiciary Committee regarding sexual assault allegations during his nomination process and claimed that the investigation was a “whole two-week effort [which had been] a calculated and orchestrated political hit, fuelled with apparent pent-up anger about President Trump and the 2016 election [9]” and repeatedly demonstrated hostility towards Democratic Senators and organizations associated with the Democratic Party. One would think that a judge with the experience of Kavanaugh would endorse a full and thorough investigation to seek out the truth, but no, he repeatedly attacked Democrats for even initiating the inquiry. He was later confirmed by the Senate 50-48 along strict party lines.

Party Polarization (1879-2014) in Both Congressional Chambers:

Once on the Court, appointees still exist in a political universe defined by partisanship. It would be naïve to believe that Justices are completely immune to social pressures and can completely resist seeking approval from their elite peers; indeed, they sought a significantly less lucrative career path than others of similar intellect and experience for the personal esteem and power associated with the Supreme Court [11]. Justices – through voting patterns and extrajudicial activities, such as conference appearances and lectures – associate themselves with certain political identities, and it stands to reason that they would value the opinion of elites who share their respective identities. With that in mind, it does not take an illogical extrapolation to conclude that by existing in an environment in which partisanship saturates the strata of political elites, Justices experience some amount of pressure to rule in manner so as to appease – at least not provoke – those who share their respective ideologies. In fact, Justices appointed to the Court by Republican presidents since 1990 have been less likely to support liberal positions than pre-1990 Republican appointees [12].

Hope for an independent Supreme Court is not lost, however, despite President Trump’s fanning of partisan passions with his incendiary rhetoric. To combat further democratic backsliding through judicial partisanship, it is crucial for Americans to support candidates committed to bipartisan agendas, demand their local Congressperson supports legislation that regulates campaign financing, and vote down the ballot this November in favor of candidates invested in soothing partisan tensions. Only when these aims are accomplished may the future of American democracy be bright.

[1], [2] Varol, Ozan. “Stealth Authoritarianism.” Iowa Law Review 100 (2015): 1673–1742. 
[3], [8], [12] Devins, Neal, and Lawrence Baum. “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court.” The Supreme Court Review, January 1, 1970. https://www.journals.uchicago.edu/doi/full/10.1086/691096.

[4] Goodin, Robert E. “Cross-Cutting Cleavages and Social Conflict.” British Journal of Political Science 5, no. 4 (1975): 516-19. http://www.jstor.org/stable/193443.
[5], [6] Andris C, Lee D, Hamilton MJ, Martino M, Gunning CE, et al, “The Rise of Partisanship and Super-Cooperators in the U.S. House of Representatives,” PLOS ONE, 2015, https://doi.org/10.1371/journal.pone.012350

[7] “Cost of Election,” OpenSecrets, accessed October 13, 2020, https://www.opensecrets.org/elections-overview/ cost-of-election?cycle=2020.

[9] The New York Times. “Brett Kavanaugh’s Opening Statement: Full Transcript.” The New York Times. The New York Times, September 26, 2018. https://www.nytimes.com/2018 /09/26/us/politics/read-brett-kavanaughs-complete-opening-statement.html.

[10] Poole, Keith. “The Polarization of Congressional Parties.” Vote View, March 21, 2015. https://legacy.voteview.com/political_polarization_2014.htm. 
[11] Baum, Lawrence and Devins, Neal, “Why the Supreme Court Cares About Elites, Not the American People” (2010). Faculty Publications.