For the First Time in a Century, the Supreme Court Is Divided by Party Affiliation

The law, lawyers, and the court.
Nov. 11 2011 5:27 PM

Split Definitive

For the first time in a century, the Supreme Court is divided solely by political party.

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President Harry Truman’s choices of relatively conservative nominees reflected his interest in rewarding political associates rather than choosing reliable liberals. And President Eisenhower’s choices of Warren and Brennan resulted largely from political (but not ideological) considerations. Warren helped Eisenhower secure the 1952 Republican presidential nomination; Brennan was appointed to the court’s so-called Catholic seat because Eisenhower wanted to appoint a Democrat to demonstrate his ability to transcend political partisanship. Kennedy appointed White, his deputy attorney general and a longtime supporter (dating back to White’s writing the intelligence report on the sinking of a boat piloted by Kennedy during World War II). Richard Nixon, although criticizing Warren court criminal justice rulings, discounted ideology in his efforts to appoint a Southerner to the court. Gerald Ford’s appointment of John Paul Stevens was directly linked to Watergate and Ford’s need to rise above politics.

This pattern continued even as the larger political system was becoming more polarized. Strongly conservative Ronald Reagan chose relatively moderate Sandra Day O’Connor because there was only a small pool of credible Republican women from whom to choose. More striking, Reagan Attorney General Edwin Meese thought the pool of conservative Republicans so weak that he set about to devise strategies to deepen that pool for future presidents.

Today, appointment strategies have changed. As politics has become even more polarized, presidents have given greater emphasis to the goal of choosing ideologically reliable justices. More than anything, Republican presidents are now under great pressure to appoint true blue conservatives. From 1969 to 1991, even though Republicans appointed 12 justices (and Democrats none), the court frequently backed liberal outcomes. By 2001, when George W. Bush became president, the rallying call of conservative Republicans was “No More Souters.” Indeed, when Bush initially chose Harriet Miers for what became Alito’s seat, vehement criticism from conservatives who doubted her ideological reliability figured into Miers’ decision to quickly withdrew, underlining changes in the political atmosphere.

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For their part, Bill Clinton and Barack Obama have contributed to the court’s partisan divides by nominating four liberals to the court. And while some Democratic partisans lament that these justices are nothing like earlier liberals such as William Brennan or Thurgood Marshall, it is nonetheless true that today’s Democratic nominees are distinctly to the left of all their Republican colleagues.

All this could change. But it’s unlikely unless and until partisan polarization declines. Future appointments, like the most recent ones, will emphasize ideological reliability over anything else. And because presidents will look for nominees whose ideological views are deeply rooted, the justices who are selected will be less likely to move toward moderation after they join the court.

The court’s strong polarization does not necessarily mean that the justices will divide strictly along partisan lines when they address the constitutional challenge to the healthcare law. Even on politically controversial issues, the court frequently departs from such partisan divisions. But because the court is now composed solely of Democratic liberals and Republican conservatives, decisions that follow partisan lines have become far more likely. If this situation continues, as we think it will, the most powerful effects may be on how Americans think about the Supreme Court as an institution.

Lawrence Baum is a professor of political science at Ohio State University.

Neal Devins is a professor of law and government at the College of William and Mary.