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Exploring the Dangers of a Purely Partisan Judiciary

Judges at the state and federal levels are becoming more nakedly partisan, ruling in ways that reflect not careful contemplation but the desire for particular policy outcomes.

Janet Protasiewicz
Janet Protasiewicz celebrating her election to the Wisconsin Supreme Court. It was the most expensive judicial contest in the nation’s history, costing more than $45 million. Her election shifted control of the court from a conservative majority to a liberal one. (Angela Major/Wisconsin Public Radio)
Illinois Democrat J.B. Pritzker considered a seat on the state supreme court “critically important.” He’s the nation’s richest governor and he donated $1 million to help bring about the outcome he wanted. But this wasn’t a judicial contest in Illinois, it was a race next door in Wisconsin. “Having a supreme court of rational non-extremists, people who will simply evaluate the law and do the right thing, [is] very, very important to all of us across the nation,” Pritzker said after his favored candidate won.

Last month’s state Supreme Court election in Wisconsin was the most expensive in the nation’s history, costing a total of more than $45 million. Although technically nonpartisan, the respective parties made their preferences clear, spending millions on the race. The outcome shifted control of the court from a conservative majority to a liberal one. In Wisconsin, as in other states, judicial elections have become far more partisan in recent years, as measured by party endorsements, donations and overlap with presidential voting.

“The big picture is that hyperpartisanship is permeating every part of our political system, and the judiciary is no different,” says Michael Kang, a law professor at Northwestern University. “We’ve seen a lot of the behavior and practices of hyperpartisanship bleeding into the judiciary.”

State courts are drawing more attention these days, in part because of the U.S. Supreme Court’s Dobbs ruling last year, ending federal abortion rights. That sent the issue squarely back to states. But state courts have become more contentious in general as politicians, corporations, environmentalists and other actors all push for advantage. To the extent that they’re getting what they want, it’s turning judges into something more resembling politicians.

“Today, it seems like judges are interested in affecting immediate policy changes that seem less about the law than their own policy preference,” Kang says. “When that happens, it makes it seem more like they’re legislators who are just voting in what they want.”

Some of the most dramatic examples have involved election law. In North Carolina, state Supreme Court justices are openly elected as partisans. Last fall, Republicans took control of the court. The new majority quickly overturned recent decisions — made by their own court — regarding redistricting and voting rights. Last year, the court itself drew a map that led to an even 7-7 split in the state’s U.S. House delegation. Now that the court has decided partisan gerrymandering is OK, the Republican Legislature is working on maps that are likely to gain the GOP four additional seats.

“Today’s display of raw partisanship call into question the impartiality of the courts,” Democratic Justice Anita Earls complained when the court agreed to re-hear the cases. “It took this court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench.”

Conversely, New York Democrats are hoping that the recent confirmation of Rowan Wilson as the state’s top judge will help their party regain congressional seats. Last year, the state’s top court (in New York, the Court of Appeals) threw out a partisan gerrymander designed to give Democrats control of 22 of the state’s 26 House seats. Wilson opposed that ruling. “The Democrats weren't content with the competitive districts,” said John Faso, a former Republican congressman. “They now want to get a mulligan."

There’s a broader danger in all this. At both the state and federal levels, judges are increasingly seen as nakedly partisan, determining cases not based on the law but the policy outcome their side prefers. In this regard, there’s the possibility that the judiciary is returning to a 19th-century standard, when judges were widely viewed as partisan actors, or nothing more than politicians in robes.

“In some sense, what we’re seeing is a return to the historical normal, where people are admitting that the sort of people who get chosen in highly political selection processes, to decide really important political decisions, end up being at least somewhat political themselves,” says Penn State University political scientist Michael Nelson.

Politicizing the Process

To the extent most people pay attention to the courts, Nelson says, they mainly focus on the U.S. Supreme Court. While Justice Anthony Kennedy remained on the court, there was still some drama and doubt. The court might rule in a conservative fashion on voting rights, but then turn liberal when it came to matters such as same-sex marriage.

At this point, however, with Republican appointees enjoying a 6-3 supermajority, there’s little doubt about how key cases will be decided. That means that when the court issues its blockbuster rulings in June, there’s going to be a clear conservative sweep, rather than a split of decisions.

Control of the Supreme Court has become overtly partisan, with the Republican Senate majority holding open a vacant seat for nearly a full year at the end of Barack Obama’s presidency in 2016, but then rushing through confirmation of Amy Coney Barrett, who was appointed by President Donald Trump, in record time just ahead of the 2020 election. So, while Republicans a generation ago complained about “activist judges,” in the wake of the liberal Warren Court, now it’s Democrats who talk about packing the court by expanding its size (an idea that’s gained no traction under President Biden).

“The best estimate of the next time the Supreme Court is expected to have a majority of Democratic-leaning justices is in 2065,” according to simulations just published by a group of law professors.

The appointment process has become highly politicized. Most senators from the opposition party now vote against presidential picks, in contrast to the unanimous or near-unanimous votes that were standard up until a generation ago. California Sen. Dianne Feinstein returned to the Capitol on Wednesday after nearly a three-month absence, which had resulted in Democrats lacking a voting majority on the Judiciary Committee and stalled Biden’s judicial picks. Naturally, Republicans had no interest in granting the Democrats’ wishes for a temporary replacement.

Doubting Thomas

Once judges make it to the courts, it remains clear which side they’re playing on. ProPublica has published a series of reports that Supreme Court Justice Clarence Thomas has accepted, but not disclosed, lavish trips, real estate subsidies and tuition for a grandnephew from billionaire GOP donor Harlan Crow.

The response to these disclosures has been, well, partisan. Some House Democrats have called on Thomas to resign, while Senate Democrats want Crow to disclose any gifts of value to Thomas or other justices. Republicans say that there’s nothing to see here. Senate GOP Leader Mitch McConnell of Kentucky recently defended both Thomas and Justice Neil Gorsuch, who failed to disclose a favorable real estate deal with a big firm that has frequent business before the court. “They are trying to turn impartial judges into partisan hostages,” McConnell said, claiming this was all part of “the desperate and never-ending attempts to smear and defame justices appointed by Republican presidents, going back years and decades.”

In terms of actual cases, partisan decision-making was on full display one Friday last month. On April 7, Judge Matthew Kacsmaryk, a Trump appointee, issued a ruling saying that the Food and Drug Administration had wrongly approved mifepristone, an abortifacient, nearly a quarter-century ago — siding not only with the anti-abortion groups who brought the case, but 23 Republican attorneys general who had filed briefs. That same day, Judge Thomas O. Rice, an Obama appointee, ordered the FDA not to restrict access to the same drug, ruling in favor of a group of Democratic attorneys general.

Inviting Chaos

Politics has become more partisan and polarized since the end of the Cold War. We are taught in civics class that the judiciary is not a partisan branch, but history suggests otherwise. “If you went back to the 1800s, the idea that judges would not be associated with politics would have been totally foreign to them,” says Penn State’s Nelson.

So, if nonpartisan judges were a historical blip, what’s the harm in them returning to form and being more openly partisan? Clearly, a lot. For one thing, judges rely on respect for their opinions, and now they’re getting much less of that. Only 40 percent approved of the Supreme Court in a Gallup poll last fall, down from 61 percent as recently as 2009.

The whole idea of having courts is that they’re supposed to present a neutral third party that can resolve disputes between the affected parties. People aren’t always happy with the outcome — that’s the whole source of drama driving the many court shows on television — but if they believe the process is fair, they’re willing to abide by the rulings.

If it’s not fair — if in fact partisan actors are able to shop for judges they’re fairly certain will rule the way they want — the idea that judges can be impartial and independent goes out the window. This line of argument has been very much part of Trump’s complaint about his loss Tuesday in a civil trial finding him guilty of sexual abuse and defamation. His attorney said he couldn’t get a fair trial in Democratic-voting Manhattan, his campaign complained the justice system is “compromised by extremist, left-wing politics” in Democratic jurisdictions and Trump himself said, “We got treated very badly by the Clinton-appointed judge.”

After Kacsmaryk handed down his ruling on blocking access to the abortion pill, New York Rep. Alexandria Ocasio-Cortez and Oregon Sen. Ron Wyden, both Democrats, stated publicly that the ruling was so clearly wrong that the Biden administration should feel free to ignore it. “There is no way this decision has a basis in law,” Wyden said. “I believe the Food and Drug Administration has the authority to ignore this ruling.”

Two members of Congress don’t speak for the government as a whole. But if an agency were to decide that it can ignore a court order, who can decide that it’s wrong — and enforce that decision?

In this case, at least, that’s not a live question. Kacsmaryk’s ruling has been put on hold, at least for the time being, by the U.S. Supreme Court. But one justice publicly expressed concern that a federal agency might choose to ignore a court decision. “Here, the government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases,” Justice Samuel Alito wrote in dissent in the abortion pill case.
Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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