The Supreme Court has become a partisan institution

Ian Rosenzweig ’25

The United States Supreme Court is exactly what it sounds like: the highest court of law in the country. Its nine justices interpret the U.S. Constitution and form opinions on cases that shape restrictions and allowances in legislative bodies.

At its core, the Supreme Court is supposed to be an apolitical institution. Although justices are appointed by presidents (all of whom have been associated with a political party), they are required to perform their duties using their knowledge of judicial procedures and United States law without the influence of their personal political beliefs. But recent years have seen a more political court producing increasingly partisan decisions.

The current court is composed of six justices who approach the constitution with an originalist approach (which tends to align with more conservative ideals) and were appointed by Republican presidents. Conversely, three justices approach the constitution with a living constitution model (which tends to align with more liberal ideals) and were appointed by Democratic presidents.

Presidents are responsible for appointing justices, and the Senate is responsible for approving them, so it is understandable that justices will be seen as affiliated with a party or a president.

Of course, the justices are people too. They are (or at some point may have been) registered with political parties. Yet, the court’s job is not to make political decisions, rule on which legislation it believes to be moral, or what the justices’ personal beliefs are. Its job is to interpret the constitution and apply it to law.

In recent years, politicians have viewed the Court as an extension of their power, turning the Court increasingly partisan. Debates about the Court became heated just before the 2020 Presidential Election.

The Court had been relatively bipartisan at that time, consisting of a 5-4 originalist majority with Chief Justice John Roberts considered a “swing vote,” but liberal justice Ruth Bader Ginsburg died in September 2020. The election was considered a toss-up at the time, with both candidates exploiting all available resources to better their chances. Incumbent President Donald Trump saw Ginsburg’s death as one of these resources. 

He had the opportunity to appoint a third justice to the court at a time when he was quoted as saying, “I think [the 2020 election] will end up in the Supreme Court.” President Trump’s supporters were ready to defend his nominee, Judge (now Justice) Amy Coney Barrett, and supporters of (now) President Joe Biden were determined to keep the former president from expediting the confirmation of his pick to cement a majority before the election. 

Former President Trump’s prediction proved accurate; he brought lawsuit after lawsuit to the courts and, after all of the cases were lost in lower courts, The Supreme Court declined to hear any of the President’s arguments. However, his attempt to use the Court to overturn election results left many Americans questioning the court’s role in politics.

The Swearing-in Ceremony of the Honorable Amy Coney Barrett – The White House via Wikimedia Commons

Furthermore, then-former Vice President Joe Biden and Senator Kamala Harris were both asked about “court-packing” (adding justices to the Court to create a political majority) while campaigning. Court-packing dates back to the Franklin D. Roosevelt presidency. It’s inherent political agenda allowed politicians to exploit the Court for political means. 

During the FDR administration, President Roosevelt wanted to pack the Court to force his New Deal legislation through legal challenges. He created a win-win situation: either he added more justices (which the Constitution does not prohibit) to ensure his agenda was approved, or the nine justices on the court at that time were more lenient with their interpretation of the constitution thus allowing his legislation. Although he would have needed the approval of Congress to make any changes, FDR essentially attempted to strong-arm the Court into doing his will. This abuse of power may have been the beginning of the court’s partisan swings.

In 2020, some liberal senators proposed what they referred to as “court reform” (but was a plan to pack the court) to protect legislation such as the Affordable Care Act (ObamaCare). President Biden and Vice President Harris were asked about their plans for the Court, but neither gave a clear answer other than that they were open to changes. The public was again shown how much influence politicians are willing to exert over the Court and the threat they pose to the checks and balances system of the United States government.

It is obvious that the Executive Branch of the government has too much power over the Judicial Branch, but is the Supreme Court itself a partisan institution? It depends. 

 When hot-button issues in America’s political dialogue and cases with political overtones–such as abortion rights, voting rights, government size and overreach–the Court is extremely partisan.

When hot-button issues in America’s political dialogue and cases with political overtones–such as abortion rights, voting rights, government size and overreach–the Court is extremely partisan. Decisions are made along party lines (except for Chief Justice John Roberts, whose “swing vote” is considered one of the few things keeping the court apolitical). 

Simultaneously, the Roberts Court has been unanimous (or close to) in its decisions relating to less political issues, such as land usage and debates over minor clauses in acts. Many justices remind the public that 25% of the Court’s decisions are made unanimously while another 25% are 5-4 decisions.

Still, the Court’s partisan decisions in political cases are concerning. Is the Constitution so ambiguous that justices are forced to supplement their decisions with personal beliefs, or do the justices need to reevaluate their commitments to serving the Constitution without a personal agenda? Justice Amy Coney Barrett recently gave a speech in which she said that “[the Supreme] court is not comprised of a bunch of partisan hacks” and that the Court is outlined by “judicial philosophies” which are “not the same as political parties.”

 Justice Stephen Breyer denounces those who refer to justices by the presidents who appointed them, saying that justices are not just “junior-varsity politicians.” But Justices Barrett and Breyer have voted with the conservative and liberal majorities, respectively, in two extremely political cases–one ending President Biden’s eviction moratorium, and the other denying a motion for an injunction of Texas’s restrictive new abortion law. Although neither of these cases was based on the Constitutionality of their issues, but rather on authority and the path by which the issues were presented, it is hard to see how different “judicial philosophies” can coincidentally split the justices along the partisan lines of how they were appointed.

The Court’s recent partisan turn is dangerous, but it is even more concerning that some of the leading judicial scholars in the country don’t see this issue the way the public does. Justice Barrett is aware that the public views the Court as overwhelmingly partisan, but she disagrees despite their two most recent consequential actions having been partisanly motivated. 

These justices should not let ideologies have any influence on their decisions if they are, as Justice Barrett says, motivated by “judicial philosophies.” While the justices struggle with their duties to the unbiased interpretation of the Constitution, the Executive and Legislative Branches have attempted to exploit the court and bend it to the will of politicians.     

Can an American citizen have faith in the Supreme Court if its major decisions are motivated by partisan leanings? Can they truly say the court is nonpartisan when it is manipulated by government politics?

Can an American citizen have faith in the Supreme Court if its major decisions are motivated by partisan leanings? Can they truly say the court is nonpartisan when it is manipulated by government politics? With the resources and the education afforded by Haverford, it is not unimaginable that someday, any single Haverford graduate will be arguing a case in front of the court. This past summer, the Supreme Court heard and decided upon a case involving a minor defendant. B.L., as she is known on all official documents, won her case regarding students’ first amendment rights on and off campuses. Although the justices were able to come to an almost unanimous decision in this case, it is clear that both their past and future decisions can directly affect high school students; the partisan swing could directly affect you in the near future.