The Supreme Court Isn't Broken

Partisan politics has not captured the court, despite the conventional wisdom.

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By Tom Ginsburg

2020 will go down as one of the most politicized years for the Supreme Court in its history. Think back to just a few months ago, when partisan tension over the court was at a fever pitch. The Senate’s vote to approve the nomination of Amy Coney Barrett as associate justice, a result of Senator Mitch McConnell’s about-face on his “principle” that the Senate should not consider election-year nominations, was, except for a single senator’s vote, entirely along partisan lines. For their part, Democrats vying for their party’s presidential nomination dusted off plans to reform the Supreme Court. Republicans countered that a Democratic victory would lead to court-packing. 

Understandably, the conventional wisdom on much of the left seems to have become that the Supreme Court is a partisan institution, that the justices are simply politicians in robes, and that with a 6-3 majority, the court’s conservatives will be a rubber stamp for Republican priorities and a barrier to Democratic ones. 

But the most recent Supreme Court term paints a more nuanced portrait of the court. Surprising coalitions among justices, careful case selection, and relatively few decisions dividing the court along ideological lines point to an institution that is trying to bolster its nonpartisan legitimacy. The justices seem to be refuting the idea that they are partisan actors in an ostensibly nonpartisan institution.

To be sure, the justices are not always nonpartisan or quiescent. The willingness of some to give highly partisan speeches weighing in on culture-war issues undermines the court’s image as autonomous from politics. So, too, have several high-profile controversial cases that split the justices six to three along ideological lines. Just last week, the court released two such decisions: Brnovich v. DNC and Americans for Prosperity v. Bonta. In the former, the conservative majority upheld contentious provisions of Arizona election law. In the latter, the court limited states’ ability to require non-profit organizations to disclose the identity of their donors. Together, these cases indicate that voting rights, election laws, and campaign finance are areas where polarization within the court persists.

On the whole, however, these ideological decisions don’t represent the court’s recent conduct. If anything unites the justices, it is the view that their internal processes should not be politicized and the court needs autonomy to properly perform its role in our constitutional system. These beliefs were abundantly clear in the court’s most recent term.

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Perhaps most significantly, the court declined to intervene in the spurious lawsuits by the Trump campaign to question the legitimacy of the 2020 presidential election. The court has also avoided getting involved in various culture-war issues animating the Republican Party. In the last several weeks alone, it has refused to take up a case about transgender bathroom use in schools; declined, for a third time, to overturn the popular Obamacare program; and avoided a challenge to dues collection by public-sector unions. Evading these issues is not what one would expect if the six conservative justices were simply Republican politicians in disguise, and the court itself just a rubber stamp for Republicans.

What’s more, the term has featured coalitions that defy partisan expectations. Just last week, Justice Clarence Thomas sided with three of the court’s liberals on an important decision regarding Congress’s ability to create standing to sue; similarly, the six conservative justices divided on whether police officers could be sued by the family of a man who died in custody.

Just as striking, 29 decisions—out of 67 issued—were unanimous. One such decision was on a religious freedom case, in which the court held that a Catholic adoption agency could not be forced to place children with LGBT parents. Only 11 cases were decided by a single vote of 5-4 (or 5-3, for cases argued before Justice Amy Coney Barrett joined the court). These coalitions do not indicate a purely political body and are, broadly speaking, consistent with most of the years of the Roberts court, as well as earlier periods.

It remains to be seen, of course, whether this judicial retreat from the headlines and frontline of politics will last. There are some issues, as embodied by the Brnovich decision, that still divide the justices along ideological lines and may lead to further politicization of the court. The next term begins the first Monday of October and will no doubt include some contentious cases. But if the current trend continues, the justices will step further away from the partisan battleground and show us that, in at least one American institution, polarization has its limits.

Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.