- - Monday, September 13, 2021

Recent decisions by the Supreme Court, with its 6-3 conservative majority, have refocused attention on an institution whose rulings on America’s most divisive issues can affect millions of people.

In recent weeks, the high court has broken from its traditional and time-consuming process by issuing speedy rulings from its “shadow docket” on immigration, evictions and abortion. The unsigned opinion allowing Texas to implement the most severe abortion restrictions in the country while the challenge to the law moves through the court system led Justice Stephen Breyer to publicly denounce it as “very, very, very wrong.”

The decisions have reignited accusations of partisanship and ideological bias as old as the court itself, especially in light of the Republican-led Senate’s breakneck confirmation in October 2020 of conservative Amy Coney Barrett just weeks after the death of liberal icon Ruth Bader Ginsburg.

Justice Barrett sought to address those concerns on Sunday, telling an audience at the University of Louisville’s McConnell Center that the court should be “hyper vigilant to make sure they’re not letting personal biases creep into their decisions, since judges are people, too.”



Justice Barrett’s confirmation process underscores her concerns. Her nomination enraged Democrats and liberal activists because she was picked by then-President Donald Trump right before the 2020 election, just four years after Senate Republicans refused to give Judge Merrick Garland a hearing on the grounds that such an important nomination should be left to the next president.

Then-Majority Leader Mitch McConnell’s move paid off because Mr. Trump, a Republican, unexpectedly defeated Democrat Hillary Clinton. Shortly after taking office, Mr. Trump nominated conservative Neil Gorsuch to replace the deceased Antonin Scalia. 

In this episode of History As It Happens, Ohio State University political scientist Lawrence Baum, who has studied the Supreme Court for half a century, weighs in on whether the court has become excessively partisan or too ideologically rigid.

“We are in unusual political times. Those of us who follow the court are interested in partisanship and its role in a way that we weren’t in the past,” said Mr. Baum, the author of the college textbook “The Supreme Court,” now in its 14th edition.

“There is, of course, great partisan polarization. There’s a more winner-take-all mentality. It was always there, but it is stronger now than it’s typically been in the past,” Mr. Baum said.

“The Supreme Court has always been ideological … but since 2010 this is the first time the ideological lines in the court have coincided with partisan lines. In other words, all the Democratic appointees on the court are liberals. All the Republican appointees are conservatives. And as strange as it might sound, that was never true in the past,” Mr. Baum said.

For instance, in 1969 President Richard Nixon, a Republican, nominated Warren Burger as chief justice to succeed Earl Warren. Burger joined the majority in Roe vs. Wade, among other liberal decisions.

The conservative Federalist Society played an influential role in selecting Mr. Trump’s choices for the federal bench, an arrangement that has provoked intense criticism from liberals and even led to a Senate hearing.

“I don’t see that as a major problem as long as it is relatively visible,” Mr. Baum said. “It’s inevitable that presidents are going to listen to interest groups that are associated with their party and the Federalist Society is dominant in a way no other group is.”

For more of Lawrence Baum’s observations about the “political history” of the Supreme Court and its increased use of the “shadow docket,” listen to this episode of History As It Happens.

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