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Red Seats, Blue Seats: Antonin Scalia's Polarized Supreme Court

The partisan divide on our nation's top judicial body is a newer phenomenon than you may think.
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(Photo: Drew Angerer/Getty Images)

(Photo: Drew Angerer/Getty Images)

The death of Supreme Court Justice Antonin Scalia is big news, and for good reason: It means the recent tendency of the court to split 5–4 on hot-button social issues—usually in favor of the conservative side—has come to a temporary halt. No doubt the prospect of restoring that dynamic, or replacing it with its opposite, will become a major issue in the presidential race.

But when did the court become so predictably partisan? And does the electorate really want it that way?

Recent research suggests it's actually a fairly new phenomenon, and yes, a substantial number of us actually do want it that way.

In a 2014 paper, Neal Devins of William & Mary Law School and Lawrence Baum of Ohio State University report that "a dramatic increase in the ideological gap between Democratic and Republican nominees" began around 1990, and solidified 20 years later, when the Supreme Court "for the first time ever" found itself "divided into two partisan ideological blocks."

Doesn't the public clamor for consensus? Actually, not so much.

"Before 2010, the court always had at least one liberal Republican appointee, one conservative Democrat appointee, or both," they write. "Starting with the August 2010 confirmation of Elena Kagan to succeed liberal Republican John Paul Stevens, each of the justices appointed by a Democratic president typically favors liberal outcomes, while Republican appointees generally favor conservative positions."

"This partisan division is unprecedented in the court's history," they write, adding that it reflects "the sorting of elites into the two parties on the basis of ideology." In turn, this trend "has prompted presidents—for the first time ever—to make ideology the dominant factor in appointing justices."

Analyzing voting patterns of justices over the past four decades, Devins and Baum report that those "who might once have been drawn into moderation are increasingly reinforced in their liberal or conservative orientations."

"One key reason is that the rise of the conservative legal network has worked against the 'drift' of Republican appointees toward more moderate positions that was common a few decades ago."

They conclude in their William & Mary Law School research paper that the divide of red seats and blue seats is likely to be a reality "as long as the current partisan polarization continues."

But doesn't the public clamor for consensus? Actually, not so much. At least, that was the conclusion of Brandon Bartels of George Washington University and Christopher Johnson of Duke University in their 2011 paper.

"National survey data show that a large segment of the public perceives of the court in political terms, and prefers that justices by chosen on political and ideological bases," Bartels and Johnson write in the journal Public Opinion Quarterly.

Using data from the 2005 Annenberg Supreme Court Survey, which featured interviews with 1,500 American adults, they report that nearly two-thirds of respondents—64 percent—believed the court was "sometimes politically motivated in its rulings."

While Americans don't view this as ideal—around 70 percent of respondents asserted the court is "too mixed up in politics"—the results suggest most of us accept this reality.

"The more individuals perceive the court in politicized terms," they write, "the greater their degree of support for an appointment process that emphasizes political and ideological factors."

Bartels and Johnson conclude that "those who see the court as politicized do not differentiate the court from Congress and the presidency, and thus prefer that justices be chosen on the same political and ideological bases used for those other institutions."

This preference is clear to the senators who vote on Supreme Court nominees. In a 2015 study, a research team led by Princeton University political scientist Jonathan Kastellec examined whether senators' confirmation votes reflected the opinions of their average constituent.

"We find that senators weight their partisan base far more heavily (than the overall opinion of their constituents) when casting such roll call votes," Kastellec and his team write in the Journal of Politics. "Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter."

This explains why Senate Republican leader Mitch McConnell is so reluctant to allow a vote on an Obama nominee to replace Justice Scalia. Republican senators from a number of states who voted for Obama twice are up for re-election this year, and if they follow the aforementioned pattern and vote in a way that pleases members of their own party, they risk alienating the larger electorate.

So while the vacancy will likely create more partisan gridlock, it's unfair to blame it all on "Washington." The polarization of Washington elites, which results in the polarization of the Supreme Court, may simply reflect the polarization of the nation.


Findings is a daily column by Pacific Standard staff writer Tom Jacobs, who scours the psychological-research journals to discover new insights into human behavior, ranging from the origins of our political beliefs to the cultivation of creativity.