January 4, 2021
Estimated read time: 10 minutes
1. Prologue
2. The Leaning Court of Normalcy
3. The FDR Flip
4. The Solidification of Partisanship
5. Epilogue
A. Afterword
Prologue
What would it mean for the Supreme Court to be partisan? For justices to put party demands over the constitution? It would mean that the original intent of the court, as laid out by Alexander Hamilton in the 78th Federalist paper, has been violated. It would mean that the current Chief Justice’s view of the court, a view that he believes is imperative the nation shares in for the sake of democracy, is flawed. It would mean that one party could control all three branches of government and wield unchecked power over the nation.
And yet.
Does anyone believe that the courts are non-partisan? Roe v. Wade has become a singular decision point for voters on the left and right. But the fear of and desire for overturning the ruling isn’t regarding the possibility of a law passing in Congress, but rather action by the Supreme Court. For people to focus on the Supreme Court instead of the legislature heavily suggests a belief in, maybe even a hope for, a partisan court.
But it’s one thing to believe in a partisan court and it’s something else entirely to have evidence to support that belief. And since one of the biggest focal points of concern for partisanship of the court is around overrulings, I sought to answer the question:
When the Supreme Court overturns previous rulings by the court, are these overrulings guided by partisan bias?
I will admit, I went into researching this article with my own bias. I went into this research hoping to find compelling evidence of a nonpartisan court because that is what I believe is in the best interest of the United States. But again, it’s one thing to have a belief, to have a hope, and it’s something else entirely to have evidence for that belief.
The Leaning Court of Normalcy
In the current climate, you could easily reach the conclusion that presidents only nominate Supreme Court justices of the same party as them. This conclusion would be wrong but understandable, since for almost 50 years this has been the norm. 1972 marked the last time a president appointed a justice from an opposition party, when Republican Richard Nixon appointed Democrat Lewis F. Powell Jr.
If you, like me, took this to be an indicator that we’ve become more partisan over the past 50 years but still made the assumption that a 5-4 court is a bipartisan court, then you may have come to the same conclusion that I did that most of history had a 5-4 court.
This conclusion would also be wrong.
The Supreme Court heavily favored one party for more than 70% of US history. Specifically, for 160 years of the United States' existence, over 60% of the court was made up of the same party. This majority is enough for the majority party to consistently outvote the minority, even if one member of the majority is a swing voter.
Furthermore, in the years since Nixon, since a president last nominated a justice from the opposing party, more years have been spent with a 5-4 Supreme Court than all of the previous years combined.
So does this prove that we’ve actually become less partisan since Nixon? No, of course not.
Instead, this seems to hint that a 5-4 Court is historically indicative of increased partisanship. We would need more evidence to say for sure, but to have presidents who are willing to appoint justices across party lines seems to indicate that party was not a priority in nominating justices.
To really dig into whether a 5-4 court is more partisan, we need to dig into the actual votes on the overrulings.
The FDR Flip
How do you say that an overruling is partisan? At first it seems simple: a Republican majority court overrules a decision made by a Democrat majority court. But one consistent thing I’ve learned in researching this topic is that nothing about this is simple. For example, former justice Ruth Bader Ginsberg, a Democrat icon, sided with four Republicans in South Dakota v. Wayfair to overrule a case voted through by eight Republicans.
One could hardly say that this overruling was partisan since, for the most part, South Dakota v. Wayfair involved Republicans overruling Republicans. In the face of cases like this, I came to the following definition. An overruling is partisan if the majority of justices in the majority vote of the overruling case differs from the majority of justices in the majority vote of the overruled case. So South Dakota v. Wayfair would not be partisan, but if the overruled case were eight Democrats instead of eight Republicans, it would be.
Obviously, with courts changing composition, some partisan overrulings will be inevitable with this definition. But the changing proportion of partisan vs. non-partisan rulings should be able to reliably show trends in how overrulings have leaned.
FDR's presidency opened the floodgates of partisan overrulings. Before he was elected, the Supreme Court averaged ⅓ overrulings per year, with 37% of those being partisan. Since he left office, the Supreme Court averaged 2.5 overrulings per year, with 60% of those being partisan.
Some of you might look at this and argue that the Supreme Court under FDR was simply responding to almost 70 years of a Republican controlled Supreme Court. But if you compare the two graphs side by side, you can see clearly the three previous times where one party took the majority of the Supreme Court from another party, a torrent of overrulings failed to follow.
In fact, this does strongly act as evidence that, as suspected earlier, a court that heavily favored one party was not historically partisan in its overrulings. But since FDR, this is no longer the case.
Now, some of the particularly savvy among you may have noticed that there is a crucial flaw in my definition of partisan overrulings. A flaw that provides one last opportunity for evidence that the Supreme Court isn’t partisan when overruling former cases. And to discover whether or not this reveals a different view of the court, we’ll need to dig into that flaw.
The Solidification of Partisanship
If the Supreme Court is made up of 5 Democrats and 4 Republican but they vote unanimously to overrule an ruling voted through by 8 Republicans, can you fairly call this partisan? True, it is a majority of Democrats overruling a majority of Republicans, but describing this as partisan lacks any sense of nuance. One could describe an overruling like this as a cultural shift, where Republican and Democrat justices alike agree on a changing interpretation of the constitution given the current climate.
To account for this nuance I feel compelled to introduce a new term: Hyper-partisan. If an overruling is partisan based on the previous definition and additionally either the majority votes or dissenting votes in the overruling case are all of the same party, it will be deemed hyper-partisan. So now, only cases like Franchise Tax Board of California v. Hyatt where 5 Republicans voted against 4 Democrats to overrule an earlier Democrat majority case will be described as hyper-partisan.
With this new term, we effectively break the previous definition of partisan into two categories. Cases that are both partisan and hyper-partisan, and cases that are partisan but not hyper-partisan. Since this second category features overrulings where different parties are working together, I'll label them as pseudo-bipartisan.
So, were all of the overruling cases we previously labeled as partisan actually pseudo-bipartisan?
No. No they weren’t.
But first, the good news. Although FDR's presidency opened the doors to overrulings becoming significantly more common, most of the “partisan” overrulings under his tenure were actually bipartisan. Only 3 of the 40 overrulings during his tenure had the Democrats overturning a former Republican ruling without Republicans voting with them. And even though hyper-partisan overrulings began to rise after his death, they were still outnumbered by bipartisan overrulings.
But that has not continued to the present. Starting after 1991, when George H.W. Bush appointed his last justice to form an 8-1 Republican majority court, hyper-partisan overrulings started outnumbering bipartisan overrulings.
Even accounting for the flaw in our definition didn’t do anything but show further compelling evidence that the Supreme Court overturns prior cases increasingly based on bias.
Epilogue
Does this mean that there is no hope for a non-partisan Supreme Court? No. The Supreme Court may be partisan in overrulings, but that does not mean that it has fully succumbed to partisan pressures. If it had, you could imagine a completely different end to the recent Texas lawsuit to overturn election results.
But the Court still seems to be heading in a more partisan direction. So what can be done?
One thing I noticed in my research is that, if you line up historical events with the trends in my graphs, you can clearly see a strong correlation between cultural shifts and the shape of the court. In the face of this, one could make the argument that to heal the divide in the courts we must find more common ground as a nation.
To be honest, I’ve often heard platitudes like this. And I always found them meaningless, because they showed no paths of actions to accomplish the stated ideal. So instead of just platitudes, here are some low effort actions you can take to help develop a greater respect for those you disagree with and heal the political divide.
r/NeutralPolitics (link): Read and engage with a heavily moderated forum where people from across the spectrum respectfully work together to make informed opinions.
Left, Right, & Center (Spotify, Apple Podcasts, Stitcher): Listen to a podcast that can help expose you to other sides of issues you may never have considered while also showing how three people of different viewpoints can still get along.
Chess (link): I mean this seriously. Play chess or some other 1-1 anonymous game that allows for conversation during the game. Connect with the person about the game. Talk with them and get to know them throughout. Then, as the game comes to an end, find out if their party differs from yours or not. It’s a low risk way to find points of connection with people you may otherwise never associate with.
Afterword
After looking at the data, this was the story I took away. But I don’t want you to trust me on that alone. So I made the data used for this article fully available on my personal site. View it here.