Opinion

Has the Supreme Court gotten more partisan?

Charles Lane: Do you think that Supreme Court justices are more outwardly partisan now than they were 20 or 25 years ago?

James Hohmann: No. Historically we had former elected officials on the court. And I think that there was some value in that, as opposed to a bunch of academic lawyers. They understood politics, understood how some of their decisions would play and the struggles to implement them. I think that was probably better for the court. I also think it’s problematic that the media has persisted in pretending that the court is completely above partisanship for so long. The coverage has obviously shifted, post-Dobbs. But they’re individuals and they should be covered as such, rather than some kind of saintly figures.

Lane: I used to cover the court. That’s now almost 20 years ago. But the takeaway from the experience of covering that court and some of the lower federal courts was: The higher you go in the federal system, the more partisan the jurist. And the logic for that is pretty simple. First of all, not only are the stakes always the highest at the Supreme Court, but they have been getting higher and higher the more issues we are kind of shunting off out of the legislature and into the courts. If the stakes are high and your party controls the Senate and the presidency, you want to make darn sure you have somebody reliable in there.

Hohmann: No more Souters.

Lane: Exactly. So, unfortunately, notwithstanding the fact that we really need somebody up there who’s perceived as impartial and willing to vote against his or her party from time to time, the incentives that the parties have to produce people like that have probably never been lower.

Ruth Marcus: I think you’re partly conflating partisanship and ideology. The thing that has changed in the last 20 to 25 years, maybe a little bit longer than that, is the complete identification of ideological point of view with political party. And you have the court sorted out along ideological lines much more clearly than it ever has been before.

With the exception of Justice Ruth Bader Ginsburg, who was really open to some criticism here, I think that the conservative justices have been much more guilty of tending to favor partisan audiences than the liberal justices have been, at least recently. And I’m thinking, for example, of them all trooping to the McConnell Center after Mitch McConnell got them on the court.

Lane: Well, maybe it just seems like the conservatives are doing it more because there are no liberals left.

Listen to the full conversation here: