The Supreme Court: Depoliticizing the Judiciary

When America’s founders created the three branches of government, they intended for the judiciary to place a check on the other two branches by remaining above the fray of partisan politics. The duty of the Supreme Court, they believed, was to apply the laws passed by Congress and to resolve specific disputes. To carry out this role as intended, the court’s political independence was crucial.

Over 200 years later, America’s judicial branch no longer operates above the political fray. In particular, the Senate nomination process for judges has become just another forum for the extreme partisan combat infecting every facet of our government. Instead of collaborative processes intended to provide final checks on nominees’ qualifications, today’s Supreme Court vacancies inevitably lead to politically charged confirmation hearing battles, polarizing justices, and split decisions based heavily on the political leanings of each justice rather than the facts.

Until the 1940s, at least 80% of Supreme Court decisions in most years were unanimous, and 5-4 splits rarely crept over 5%. Since 2000, only 36% of decisions were unanimous while 19% were 5-4.

Citizens should be able to trust the court to provide equal justice under the law no matter who sits on the bench. But restoring this trust requires structural changes to diminish the incentives for Congressional Democrats and Republicans to declare war with one another each time a Supreme Court vacancy occurs. The New Center believes two ideas, in particular, could make a difference:

  • Lowering the stakes of each Supreme Court nomination by limiting justices to 18-year terms
  • Encouraging the nomination of more moderate judges by raising the cloture threshold to 60 votes when one party controls both the Senate and the presidency

Click here to read the full paper: The Supreme Court: Depoliticizing the Judiciary