Supreme Court Review

Article Title

Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court


Since 2010, when Elena Kagan replaced John Paul Stevens, all of the Republican-nominated Justices on the Supreme Court have been to the right of all of its Democratic-nominated Justices. This pattern is widely recognized, but it is not well recognized that it is unique in the Court’s history. Before 2010, the Court never had clear ideological blocs that coincided with party lines. Today’s partisan split, while unprecedented, is likely enduring. The very political changes that underlie the current split make it likely that, for the foreseeable future, a Court with five Democratic-nominated Justices would reach decisions quite different from those a Court with five Republican-nominated Justices would reach. For this reason, presidential elections matter more for the Court than ever before. Indeed, the Court was a focal point of the 2016 presidential campaign. Following the sudden death of Antonin Scalia, Democrats and Republicans divided over the propriety of President Obama’s appointing a successor during an election year—exposing a deep, divisive gulf between the parties over the very issues that divide the Justices. Democratic candidates Hillary Rodham Clinton and Bernie Sanders spoke both of President Obama’s constitutional responsibility to fill the Scalia seat and of their having a “litmus test” for Supreme Court nominees to overturn what Sanders called the “disastrous” Citizens United ruling; Republican candidates Donald Trump, Marco Rubio, Jeb Bush, and Ted Cruz backed Senate Republican efforts to block an Obama nominee, proclaimed the 2016 election a “referendum” on the Supreme Court, and spoke of the need for “future Supreme Court[s]” to undo the Roberts Court’s decisions on the Affordable Care Act and same-sex marriage. Correspondingly, after securing their party’s nomination, Clinton and Trump continued to highlight the Republican-Democratic Supreme Court divide. They repeatedly called attention to the Court and, with it, party differences on gun control, immigration, health care, abortion, campaign finance, and voter identification laws. This article documents that today’s Court is different from past Courts in the linkage between party and ideology. More important, it offers an explanation for this development. That explanation is based on the growth in polarization among political elites—polarization that has shaped the Court in multiple ways and that is likely to continue

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