Partisan US Supreme Court has lost its global appeal

Battle now on to pack SC with justices who share the ruling party's ideological orientation

File photo
File photo

By Chidanand Rajghatta

Published: Wed 4 May 2022, 9:45 PM

The Supreme Court of the United States is a hallowed and historic institution. It is so venerable that it has had only 115 justices in its 233-year existence, each judge serving an average of 16 years. Many have served 25-35 years. Such is its awesome majesty and halo that the 27th US President, William Howard Taft, after his stint in the White House (1909-1913), went on to serve as the 10th Chief Justice of the US Supreme Court (1921-1930).

Because US Supreme Court judges are appointed for life, they can serve till they die, although a third of them (39) have stepped down voluntarily, typically citing declining health. Among the oldest to serve were Justice Oliver Wendell Holmes, Jr., (1902-1932), who was touching 90 when he retired after 30 years on the bench, and Justice William Douglas, who was 87 when he retired after serving for more than 36 years (1939-1975).

US Supreme Court judges - typically legal luminaries - are nominated by the President and confirmed by the Senate. For nearly a century after the US SC was established in 1789, justices were appointed by bipartisan acclamation, and rarely voted on. That collegial and consensual process ended in the 1960s as the American polity began to get more polarized on ideological grounds.

The last 19 justices, starting with Justice Thurgood Marshall in 1965, have all been confirmed with a Senate vote. Even so, there was an element of bipartisanship in the process. Marshall was confirmed by a 69-11 vote, Warren Burger by 74-3, and late into the 20th century, Antonin Scalia came through 98-0 and Sandra Day O’Connor 99-0. Whether they were of liberal or conservative persuasion, the two major political parties found enough common ground and thought them distinguished enough to vote them through comfortably.

It was only in the Bush-Obama-Trump era in the first two decades of the 21st century that the political polarisation has become so acute it has begun to taint the hallowed institution. Bush nominee Samuel Alito, currently in the midst of a raging controversy as he leads a conservative majority bench to outlaw abortions, came through 58-42, largely along party lines, with only four Democrat Senators joining 54 Republicans to confirm him. Obama nominees Sonia Sotomayor and Elena Kagan did slightly better, confirmed 68-31 and 63-37 respectively.

But it was with the coming of Trump that America reached an acme of partisan rancor with regards to the highest court in the land, with all three of his nominees, Neil Gorsuch (54-45), Brett Kavanagh (50-48), and Amy Coney Barrett (52-48) confirmed mostly along party lines. Biden’s nominee Ketanji Brown Jackson did no better, confirmed 53-47.

The battle is now truly on to pack the Supreme Court with justices who share the ruling party’s ideological orientation. Since justices nominated by the President have to be confirmed by the Senate, the party that controls the Senate is in a position to shepherd its preferred candidate into the court.

But here’s the catch. The US Senate is not a demographically representative body. The chamber consists of two Senators from each state, irrespective of the state’s population. So technically, a party can win a majority in the Senate even if it wins fewer popular votes nationwide, simply by winning a greater number of less populated states. This is what the Republicans have managed. Consequently, it can be argued that the current US Supreme Court does not reflect the popular will of the American electorate. It is a rigged court, packed with justices cherry-picked by a ruling party with their ideological orientation being the key qualification.

Donald Trump and his Republican Party were lucky in this regard: Three Supreme Court vacancies opened up during his term: Well, actually two. One of them occurred in the final months of the Obama Presidency, and the Republican majority Senate successfully stalled confirmation of an Obama nominee, arguing that he could not be voted in during an election year. But they managed to ram through a Trump nominee weeks before the 2020 election, ensuring that the Supreme Court has a 6-3 conservative bent. And because Trump-Republican appointees are all around below 60, the Court will remain conservative for perhaps the next 20-25 years at least – unless Democrats expand the court from nine justices to 15, as is being proposed in some quarters. Even so, they will need to be in control of the Senate to change the balance.

Two outcomes flow from the ongoing struggle. For now, the conservative views of a minority of the population spread across many thinly populated states – on issues such as abortion and gun control – is being imposed on liberal, more populated states such as New York and California. At a broader level, the US Supreme Court has lost its global appeal. Once seen and cited as the gold standard in modern jurisprudence, it is now regarded as a partisan court reflecting the opinions and preferences of a minority of Americans.

More news from Opinion