THE BLOG
09/24/2014 11:19 pm ET Updated Nov 25, 2014

Our Politically Polarized Supreme Court?

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In a recent public appearance, Chief Justice John Roberts expressed concern about the extreme polarization and partisanship that have gripped the other branches of the federal government. He was particularly concerned that, because of the increasingly partisan nature of the Supreme Court nomination and confirmation process, Americans might get the false impression that the Supreme Court itself might fall victim to such politicization. He assured his audience that that is not the case, that the Court is not "a political entity," and that the Court is not "divided into Republicans and Democrats." In short, he explained, that is not "how [the Court] works."

In fact, though, a good deal of the growing lack of confidence in the Supreme Court these days is due precisely to the concern that the justices are increasingly voting in ways that reflect the political values and preferences of the presidents who appointed them. Americans, in other words, increasingly believe that the justices are voting as "Republicans and Democrats." If this is so, it is not because the justices are "repaying" the favor of their appointment, but because presidents have gotten better at selecting nominees whose judicial approaches are likely to lead them to vote in ways that more or less conform to the appointing president's own political values and preferences. But is any of this true?

To test this possibility, I did a simple, back-of-the-envelope "study." Because the Court recently completed its 2013 term, I decided to look back over the Court's 1963, 1973, 1983, 1993, and 2003 terms in order to compare the justices' behavior in those terms with their behavior during the 2013 term.

I began by identifying what I thought to be the five most "important" decisions in each of those five earlier terms. That is obviously a subjective enterprise, but I made what are at least plausible judgments on that score. The 25 decisions I identified (five decisions in each of the five earlier terms) dealt with a broad range of issues, including, for example, freedom of speech, freedom of religion, abortion, terrorism, voting rights, racial discrimination, and criminal procedure.

In those 25 decisions, which spanned four decades, justices appointed by Democratic presidents voted regularly with justices appointed by Republican presidents, and vice-versa. Indeed, in not a single one of those 25 decisions were all of the justices appointed by Republican presidents on one side, and all of the justices appointed by Democratic presidents on the other side.

To cite just a few examples, in Elfbrandt v. Russell (1963 Term), which dealt with the free speech rights of Communists, the majority included three justices appointed by Democratic presidents and two justices appointed by Republican presidents, and the four dissenters included two justices appointed by Democratic presidents and two justices appointed by Republican presidents.

In Escobedo v. Illinois (1963 Term), which dealt with the right to counsel, the majority again included three justices appointed by Democratic presidents and two justices appointed by Republican presidents, and the dissenters included two justices appointed by Democratic presidents and two justices appointed by Republican presidents.

In Gertz v. Robert Welsh (1973 Term), which dealt with the freedom of speech, the majority included four justices appointed by Republican presidents and one appointed by a Democratic president, and the dissenters consisted of two justices appointed by Democratic presidents and two justices appointed by Republican presidents.

In Lynch v. Donnelly (1983 Term), which dealt with the freedom of religion, the majority consisted of four justices appointed by Republican presidents and one justice appointed by a Democratic president, whereas the dissenters included three justices appointed by Republican presidents and one justice appointed by a Democratic president.

In Planned Parenthood v. Casey (1993 Term), which dealt with abortion, the majority included five justices appointed by Republican presidents and the four dissenters included three justices appointed by Republican presidents and one justice appointed by a Democratic president.

In McConnell v. Federal Elections Commission (2003 Term), which dealt with the constitutionality of campaign finance regulation, the majority consisted of three justices appointed by Republican presidents and two justices appointed by Democratic presidents, and the dissenters included four justices appointed by Republican presidents.

In Ashcroft v. ACLU (2003 Term), which dealt with the regulation of sexual expression on the Internet, the majority included four justices appointed by Republican presidents and one justice appointed by a Democratic president, whereas the dissenters included three justices appointed by Republican presidents and one justice appointed by a Democratic president.

I could go on, but you get the point. This pattern held true in every one of the 25 cases I examined from the 1963, 1973, 1983, 1993, and 2003 terms. In not a single one of these cases, which I selected without regard to the voting pattern of the justices, did all of the justices appointed by Republican presidents vote one way and all of the justices appointed by Democratic presidents vote the other way.

Now let's turn to the Court's 2013 term, the one just completed. Different people will no doubt have different opinions on this question, but in my view the five most important decisions last term were Schuette v. Coalition to End Affirmative Action, which dealt with affirmative action; Burwell v. Hobby Lobby Stores, which dealt with religious freedom and contraception; Town of Greece v. Galloway, which dealt with legislative prayers; McCutcheon v. Federal Election Commission, which dealt with campaign finance regulation; and Riley v. California, which dealt with cell phone searches.

Here's the kicker: In three of these five decisions (Hobby Lobby, Town of Greece, and McCuthcheon), the justices in the majority consisted of all five of the justices who had been appointed by Republican presidents, and the dissenters consisted of all four of the justices who had been appointed by Democratic presidents. The contrast from the five earlier terms -- spanning a period of half a century -- is extraordinary.

For Chief Justice Roberts to suggest that the current Supreme Court is not "divided into Republicans and Democrats" may be true in the large majority of cases, but in the most important cases, the ones that matter the most to the American people, the polarization of the justices along partisan lines cannot be denied -- and it is, at least in the last half-century, unprecedented. To be clear, none of this is Chief Justice Roberts' fault, but it also won't do to deny what is in fact a reality.