Justices themselves, who serve for life. The sharp polarization in contemporary American politics only exacerbates the conflict over the Court.
The Court has long occupied a central and often contested role in shaping American political and civic life. In the modern era, its decisions continue to have both immediate and long-term effects on the welfare of individuals and communities throughout the country, including by affecting the rights of people of the same sex to marry, the right to bear arms, religious liberty, property ownership, women’s reproductive rights and freedoms, access to health care, participation in the political process and voting, the structure of government and the separation of powers, the operation of the criminal justice system, diversity in higher education, and the regulation of workplaces and the right to organize.[26] The stakes of the nomination process are so high precisely because they implicate matters of great public concern. Indeed, at various moments throughout history, conservatives and progressives alike have turned to the Court to protect the rights they most value and to define the authority of the elected branches of the federal government and of the states in accord with their understandings of the Constitution.
The controversies surrounding the Court are heightened by the combination of—as one witness put it—a “very powerful Supreme Court” and “a nearly-impossible-to-amend constitution.”[27] Consequently, when the Court generates “a firestorm of controversy, the only practical avenue for overturning decisions of the Court has been through changing the judges who sit on that Court.”[28] The fact that Justices have life tenure—and therefore often serve for upwards of thirty years in the modern era—only heightens the stakes of who joins the Court. Up until the late 1960s, the average term of service was fifteen years. It has now risen to roughly twenty-six years, and a number of Justices have served three or more decades, spanning numerous election cycles and presidential administrations. It is hardly a surprise, then, that key segments of the American public are so heavily invested in making sure that the “right” nominee is confirmed.
The highly polarized politics of the current era threaten to transform this already high-stakes process into one that is badly broken.[29] Political scientists generally agree that “the period since the 1980s has largely featured deepening dispute and standoff between the parties, accompanied by intensifying political and social polarization.”[30] This polarization is not simply a matter of partisan competition for its own sake, but also reflects a greater and more stable ideological divide between the two major political parties.[31] As the parties become more accurate proxies for deep ideological disagreements, the realistic potential for bipartisan compromise and cooperation decreases.[32] The depth and stakes of partisan polarization
