The Supreme Court: Just Another Political Actor

Supreme Court Justices refute the claims that the Court has become a political body, but these claims do not seem to have much basis in reality or public opinion. The Court has decided a greater number of important cases with the shadow docket, Justices have begun to retire in a strategic manner, and Congress has also politicized the Court in the view of the public with confirmation proceedings. These trends all point toward the Court’s becoming more innately politicized, as well as in the public eye. The degradation of the Court’s apolitical stance has important implications for its legitimacy and prompts the need for reforms. 

The Court has increasingly used the emergency docket to decide important cases without much explanation, prompting questions about the Court’s reasoning for this trend and its decisions. With the shadow docket, the Court does not follow the usual hearing procedure of oral arguments and instead decides cases solely on procedural grounds. Importantly, the Justices are not required to write or even sign opinions for these cases. For instance, the Court overturned a unanimous decision of three lower court judges, who had ruled that the 1956 Voting Rights Act required invalidation of the Alabama legislature’s 2022 Congressional election districts. Because the Court ruled through the emergency docket in this case, the Justices did not have to provide any public reasoning for their decisions. The Court made an impactful political decision without explaining itself to the public. The obscure nature of this decision may delegitimize the Court’s apolitical standing, since the Court did not provide a Constitutional basis for its decision. This lack of a Constitutional basis leaves open the question of the Court’s political motivations for the decision, especially since this was such a politically impactful case. As such, decisions like these through the shadow docket indicate that the Court may be acting off political beliefs.  

Justices’ actions on both the Supreme Court and lower courts show that some Justices consider political matters when acting. Justice Stephen Breyer’s decision to retire during the Democrats’ control of the White House and Senate, as urged by many liberals, shows the potential politicization of justice retirements. Justices’ retiring at convenient times for appointments according to their ideology demonstrate political intent. For instance, between 1976 and 2019, 14.7 percent of retiring judges deviated from the regular pattern of retirements in a way that ensured the judge’s replacement would be nominated by a president sharing the judge’s party affiliation. In contrast, only around 6 percent of retirements seemed politically motivated in this way between 1802 and 1975. As such, there is a clear trend in Justices overall, including Supreme Court Justices, acting to promote their political beliefs. This trend shows that the Court’s politicization does not just extend to cases but also to Justices’ individual actions. This activity lends more evidence to the politicization of the Court. 

Even if the Justices themselves do not act politically, actions by Congress during confirmation proceedings contribute to the public’s viewing of the Court as a political actor. Supreme Court confirmation votes have become closer in recent decades. Confirmation votes also fall increasingly along party lines. Congress members’ statements during confirmation hearings contribute to the political nature of the hearings. For instance, Senator Graham claimed that if Republicans had been in control of the Senate, someone more “moderate” would have been nominated to replace Justice Breyer. Similarly, Senator Ted Cruz used claims about Justice Kentanji Brown Jackson’s political ideology as a reason for senators to vote against her confirmation. These trends make the nominated Justices seem political in the public’s eye. This trend is important because once Justices have become politicized in the confirmation process, the public will view their judicial decisions in a similarly political light.

Public opinion polls prove that the Court’s politicization has empirical reality in the public’s perception of the Court. People have begun to approve less of the Court’s actions. A recent Gallup poll found that only around 40 percent of respondents approve of how the Court is doing its job, which is down from 60 percent two decades ago. The causal mechanism for this shift is likely the Court’s politicization in the public eye. For example, an October 2021 poll by Grinnell College found that 62 percent of respondents believed the Court’s decisions were driven by politics, rather than the Constitution and the law. The Justices have publicly struck back against critics, claiming that the Court is not simply a political tool. However, public opinion clearly shows that the Justice’s appeals have not helped the Court restore its apolitical nature. 

Overall, the Court’s politicization has important implications for its legitimacy. If people believe that politics rather than the Constitution is the basis of the Court’s decisions, this belief raises the question of what makes the Court’s decisions important. The Court is meant to be above politics, but many Americans believe that the Court is now simply a part of politics. If people view the Court as simply another political actor, then they may be less inclined to follow its decisions when viewing the Court’s decisions as illegitimate. Since conservatives have begun to break norms in the Court surrounding use of the emergency docket to decide large issues without repercussions, the Court may continue to act in political ways and degrade the legitimacy of its decisions. Reform is necessary to shape public opinion of the Court, save the Court’s legitimacy, and prevent the Court from acting in ways contrary to deciding on the basis of the Constitution and the law.