Presidential Commission on the Supreme Court of the United States
increase accordingly.[33] Indeed, contemporary politics generally have developed the “distinctive character of high-stakes warfare” associated with the “breakdown of norms of cooperation and civility across the aisle.”[34] According to Chief Justice John Roberts, this extreme polarization has affected public perceptions of the Court: “When you live in a polarized political environment, people tend to see everything in those terms.”[35]
The Commission did not attempt to identify the sources of polarization or come to conclusions about any role the Court may have played in it. These, too, are matters about which individual Commissioners disagree. The Commission did hear testimony, however, that acute polarization is likely to continue to affect the debate over the Court’s role in the constitutional system, and to perpetuate partisan conflict over nominees to the Court.[36] On this point, there is consensus among Commissioners. Any account of the origins of the present debate about the role and operations of the Court, therefore, would be incomplete without taking note of how the deeply divided nature of our polity affects debates over the Court. *** Before we turn to discussing proposals for Court reform and how best to evaluate them, two caveats to the above picture of partisan conflict are in order. First, even as the Court is at the center of escalating partisanship, the Court’s rulings do not necessarily track the ideological differences between parties. Justices appointed by Republicans do not always vote in a predictably conservative fashion, and Justices appointed by Democrats do not always vote in a consistently liberal one. What is more, a significant portion of the Court’s work is not highly ideological. In these cases the Justices are often unanimous or aligned in ways that cannot be predicted by the political party affiliation of the President who appointed them or by the ideologies associated with that party.[37]
Second, the extent to which extreme political polarization affects the public standing of the Court is not clear. Historically, the Court has maintained levels of public confidence higher than those accorded the other branches.[38] Though public opinion may shift in the wake of particularly controversial decisions and nominations, commentators have argued that basic trust in the Court as an institution has exhibited significant resilience.[39] At the same time, there is some evidence that partisan differences shape judgments about the Court’s performance. Court “approval” among Democrats dropped to forty percent after President Trump assumed office and made his first appointment to the Court, while among Republicans it rose to nearly sixty-five percent.[40] And whether public trust in the Court will continue to be durable remains to be seen. One recent poll suggests the Court’s approval is waning, with forty-nine percent of
December 2021 | 19
