By Katherine Wahl
There is a misconception that the Supreme Court is supposed to be politically “balanced,” made up of even numbers of liberals and conservatives.[1] Several 2020 Democratic presidential hopefuls proposed increasing the size of the Court or imposing judicial term limits to balance the bench.[2] Despite these general impressions and proposals to change the Court’s configuration, the Constitution does not require that the Court be politically balanced—yet the justices fall prey to politics for reasons that have little to do with the law and more to do with their personal and professional legacies.[3]
While the debate over whether the Supreme Court is politicized is an old one, it came to the forefront after Justice Scalia passed in February 2016.[4] Pundits asked: Should President Obama nominate a new justice, or should he wait for the next president to do so after the election? Should he nominate a liberal? A conservative? Who would “balance the bench”? Once in office, President Trump appointed a solid conservative, Justice Neil Gorsuch. The issue was reignited again when Justice Kennedy retired after decades of being the de facto “swing vote.”[5] Following the confirmation of another conservative, Justice Brett Kavanaugh, the Court’s “balance” firmly shifted to the right.[6]
Article III of the Constitution creates the Supreme Court; however, the Constitution only establishes that the Court is vested with the judicial power of the United States, makes clear that the Court is superior to all inferior courts, and sets forth the jurisdiction of the Court.[7] While there are ethical rules requiring judges to be impartial, nothing in the Constitution requires that the court be made up of a certain number of liberal or conservative judges or that it be apolitical.[8]
Despite the lack of a requirement in the Constitution for a balanced or apolitical Court, Article III does effectively give federal judges lifetime appointments and protects them from politically-motivated salary reductions.[9] This provision has been interpreted as securing lifelong appointments for Supreme Court justices as well, so long as they are in “good standing.”[10] At a minimum, the existence of lifelong appointments suggests that the framers did not want the justices to be influenced by outside factors, such as public opinion and re-election, in their interpretations of the Constitution.[11] Unlike politicians and elected state court judges, who must consider public opinion in drafting and supporting legislation because their elected positions depend on the support of their constituents, Supreme Court justices are supposed to be free from the shackles of politics because they do not need to worry about losing their position in the next election as a result of how the public perceives them.[12]
Despite the constitutional safe haven that enables justices to function free from politics, the Supreme Court is still political. Although the justices’ jobs do not depend on politics and public perception, their legacies do. The protection of their legacies has undoubtably been a concern of the justices for decades, yet it is particularly evident over the past decade, during which the Court granted cert for increasingly political cases. In deciding these highly polarizing cases, two justices in particular –Justice Kennedy and Chief Justice Roberts– seem to “balance” their decisions across the aisle in order to protect their legacies.
For example, Justice Kennedy wrote the majority decisions in both Gonzales v. Carhart and Obergefell v. Hodges, two highly political cases regarding abortion and gay rights respectively.[13] In Gonzales, Justice Kennedy wrote a graphic majority opinion siding with the conservative majority to uphold a ban on D&X abortions.[14] Eight years later, Justice Kennedy wrote the majority opinion in Obergefell, an opinion that highlighted the love story of the plaintiff and his late husband, and ultimately held that all people, regardless of sexual orientation, have a right to marry.[15] One step back for abortion rights, one step forward for gay rights. In balancing his opinions on socially “popular” cases and ending on a high note, Justice Kennedy will always be remembered for “love wins.”[16]
Chief Justice Roberts, who generally votes conservatively, has also voted with liberal majorities in highly politicized, 5-4 decisions in which he is the deciding vote. For example, in National Federation of Independent Business v. Sebelius, Chief Justice Roberts pulled a rabbit out of a hat to uphold Obamacare’s individual mandate, seemingly because he did not want to be remembered as the justice that killed healthcare.[17] However, when there was less political pressure to be the swing vote in Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts sided with the conservative minority who would have upheld restrictions on abortion.[18]
This term, the Court heard oral arguments in June Medical Services, LLC. v. Russo, a case nearly identical to Whole Woman’s Health.[19] With the new conservative makeup of the Court, Chief Justice Roberts is speculated to be the deciding vote.[20] With his legacy again on the line, will he choose to protect it and vote with the liberals, or vote with the conservatives and uphold his own precedent? The Court is political because the justices are either explicitly or implicitly making decisions to protect their legacies. For good or for bad, the Court decides cases not only based on their interpretations of the Constitution, but also for public approval. As such, policy proposals to remove politics on the bench will not work because the proposals do not address the real issue:
[1] See generally Adam Liptak, Supreme Court Judges Are Above Politics It May Hear a Case Testing That View, N.Y. Times (Sept. 16, 2019), https://www.nytimes.com/2019/09/16/us/politics/supreme-court-judges-partisanship.html (discussing the political makeup of the court).
[2] Matt Ford, A Better Way to Fix the Supreme Court, The New Republic (June 4, 2019), https://newrepublic.com/article/154047/better-way-fix-supreme-court (discussing Pete Buttigieg’s proposal to add more justices to the Court); 18 Year Term Limit for Supreme Court Justices, Yang 2020, https://www.yang2020.com/policies/scotustermlimits/ (last visited Apr. 14, 2020) (explaining Andrew Yang’s proposal to impose an eighteen-year term limit for justices on the Supreme Court).
[3] See generally U.S. Const. art. III, §§ 1-2 (establishing the Supreme Court).
[4] Maya Rhodan, President Obama Says He Will Nominate Justice Scalia’s Replacement, Time (Feb. 13, 2016), https://time.com/4220790/president-obama-justice-scalia-replacement/ (contemplating possible nominees).
[5] Sophie Tatum, Brett Kavanaugh’s Nomination: A Timeline, CNN, https://www.cnn.com/interactive/2018/10/politics/timeline-kavanaugh/ (last visited Apr. 14, 2020) (providing a timeline of events leading up to Justice Kavanaugh’s confirmation and discussing the political implications).
[6] Id.
[7] U.S. Const. art. III, §§ 1-2 (available at https://billofrightsinstitute.org/founding-documents/constitution/?utm_source=GOOGLE&utm_medium=SEARCH&utm_campaign=EVERGREEN&utm_term=CONSTITUTION&utm_content=TEXT1&gclid=EAIaIQobChMI3aO8-bbq6AIVDz0MCh2N5gdgEAAYASAAEgJbDvD_BwE).
[8] See id. (stating that the judicial power of the United States is vested in the Supreme Court and the supremacy of the Court, and establishing the jurisdiction of the Court); Code of Conduct for U.S. Judges Canon 2(b) (Mar. 12, 2019) (available at https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges) (stating “[a] judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment”). See generally Model Code of Judicial Conduct Canon 1-2 (2020) (available at https://www.americanbar.org/groups/professional_responsibility/publications/model_code_of_judicial_conduct/).
[9] U.S. Const. art. III, § 1.
[10] Kevin Dickinnson, Why are U.S. Supreme Court Justices Appointed for Life, Big Think (Sept. 20, 2018), https://bigthink.com/politics-current-affairs/why-supreme-court-lifetime-tenure?rebelltitem=1#rebelltitem1 (explaining the general interpretation of the “good standing” clause- justices may be impeached but otherwise have a lifelong tenure on the bench).
[11] See generally U.S. Const. art. III, §§ 1-2.
[12] Id.
[13] Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (available at https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf); Gonzales v. Carhart, 550 U.S. 124 (2007) (available at https://supreme.justia.com/cases/federal/us/550/05-380/index.pdf).
[14] Gonzales, 550 U.S. at 133 (upholding the Partial-Birth Abortion Ban Act of 2003).
[15] Obergefell, 135 S. Ct. at 2608.
[16] Id.; see also Tanya Somanader, Live Updates on #LoveWins: The Supreme Court Rules that Gay and Lesbian Couples Can Marry, The White House President Barack Obama (June 26, 2015), https://obamawhitehouse.archives.gov/blog/2015/06/26/live-updates-lovewins-supreme-court-rules-gay-and-lesbian-couples-can-marry-0 (chronicling the Supreme Court’s decision in Obergefell v. Hodges (135 S. Ct. 2584 (2015)) and the #lovewins movement).
[17] See generally Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (available at https://supreme.justia.com/cases/federal/us/567/11-393/case.pdf) (finding that the independent mandate is valid exercise of Congress’ power under the Constitution’s Taxing and Spending Clause).
[18] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2299 (2016) (available at https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf).
[19] Compare Whole Woman’s Health, 136 S. Ct. at 2300, with June Med. Servs., LLC. V. Gee, 788 Fed. Appx 280* (5th Cir. 2019), cert granted June Med. Servs. v. Russo, [citation pending] (No. 18-1323 & 1801460) (available at https://cases.justia.com/federal/appellate-courts/ca5/17-30397/17-30397-2019-01-18.pdf?ts=1547841613).
[20] John Kruzel, Roberts Wrestles With Abortion Law in High-Stakes Louisiana Case, The Hill (Mar. 4, 2020), https://thehill.com/regulation/court-battles/485916-roberts-in-spotlight-as-court-hears-major-abortion-case (stating that Chief Justice Roberts will likely be the swing vote).