Editor's Note: The following debate on partisanship in SCOTUS originally published on Divided We Fall. It includes perspectives from George State University law professor Eric Segall and LaGrange College Political Science professor John Tures. The piece was republished on IVN with permission from Divided We fall.

The U.S. Supreme Court Has Always Been an Ideological Institution

By Eric Segall – Professor of Law, Georgia State University College of Law

The Supreme Court of the United States is a unique, hybrid political-legal institution. It is staffed by life-tenured judges who interpret a centuries-old document replete with imprecise text that the justices must apply to an ever-changing society. They perform this difficult task against the backdrop of a long tradition of aggressive judicial review and virtually unreviewable power. The justices are nominated primarily for their political values and ideologies, not their legal skills and judgment.

A Long History of Supreme Court Partisanship in the U.S. 

Given the nature of the institution, it is not surprising that the Supreme Court, at various times in American history, has been so partisan (or at least ideological) that the justices have caused political crises. President Jefferson and the 1801 Congress effectively canceled the Court for a year. President Lincoln publicly called out the Court while fighting the Civil War, as did President Franklin Roosevelt in 1937 after the justices struck down several important New Deal Programs. Roosevelt’s desire to “pack” the Court was based on his perception that the justices were too partisan.

We narrowly escaped a crisis in 2000 after Bush v. Gore, but only because Al Gore believed in his country more than his party (or himself). The aftermath of that overtly partisan Court decision could have been much worse. Today, the Court is not just guided by ideology but by the same severe partisanship threatening our politics and our country.

Historically, the Supreme Court has consistently acted ideologically and often in a partisan manner. Before the Constitution was ratified, a critic with the pen name Brutus wrote: “There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”

Judgment v. Will in the U.S. Supreme Court

In Federalist No. 78, Alexander Hamilton responded to these concerns by saying that the Court had neither “purse nor sword,” and for these reasons was considered the least dangerous branch of government. Additionally, Hamilton believed the justices would refrain from striking down laws under this new power of judicial review unless there was an “irreconcilable variance” between the law and the Constitution. 

Hamilton was wrong. The Supreme Court has struck down hundreds of state and federal laws from the left, right, and middle, but almost always absent the requisite “irreconcilable variance.” Instead, the justices’ decisions were frequently based on ideologies and partisanship.

The U.S. Supreme Court is and always has been an ideological institution. Excessive partisanship is not the entire story but it is a unifying, and too often correct, summary of what the Court has done and is likely to do in the future. The Court’s reliance on ideology and partisanship over prior positive law will not change until the institution is altered so government officials don’t retain largely unreviewable power for life. 

Claims of Supreme Court Partisanship Have Little Support

By John Tures – Professor of Political Science, LaGrange College

In 2018, during the contentious hearings for Supreme Court nominee Brett Kavanaugh, Chief Justice John Roberts argued, “We do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest… We serve one nation.” A month later after then-President Trump criticized a Federal judge as an “Obama judge,” Roberts admonished the chief executive in a statement to the Associated Press, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we do have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Though nominated by George W. Bush and confirmed by the U.S. Senate, Roberts is seen as a moderate. We have Justice Roberts’ opinion that the Supreme Court is not partisan, but does the data support his argument? According to researchers of judicial politics, that appears to be the case.

Research Supports a Lack of Partisanship

I, along with my undergraduate students Ema Turner and Jenna Pittman, uncovered pioneering work by C. Herman Pritchett from 1941, who studied dissents by justices and found a vast array of disagreements, even though the majority of them had been nominated by the same president (Franklin Roosevelt) and confirmed by a Senate dominated by the Democratic Party. “It may have been the most divided court in history,” Pritchett concluded. Clearly, something other than partisanship, or ideology, was motivating Supreme Court votes.

Additional research conducted by Ms. Turner, Ms. Pittman, and myself shows that “In June 2021, ABC News research “found 67% of the court’s opinions in cases argued during the term that ends this month have been unanimous or nearly unanimous with just one justice dissenting.” According to SCOTUSblog, an average of 48 percent of Supreme Court rulings from 2010 to 2018 were unanimous. Another eight percent were nearly unanimous.” How these results are possible with nominees coming from such ideologically different presidents as Obama, Trump, Bush, and Clinton cannot be explained by theories relying primarily on partisanship.

The Media Exaggerates Cases of Supreme Court Partisanship

No doubt, the evidence of a nonpartisan Supreme Court may come as a shock to many readers, as the media has frequently portrayed the court as severely partisan. For example, Aaron Tang wrote in Politico, “Today’s court is extremely partisan by any measure and has lurched the law rightward on a host of important issues, from abortion to guns and voting rights to environmental law.”

Rulings on several highly publicized cases appear to show Supreme Court partisanship, which may affect public opinion. But even the most critical research on Supreme Court rulings, like that of Thomson-DeVeaux and Bronner, can find only a single term where roughly 20 percent of all cases lined up with all of the Republican-nominated justices on one side and the Democratic-nominated justices on the other. That year was an outlier too; historically, evidence of Supreme Court partisanship is much lower. 

All Cases Are Not Equal

By Eric Segall – Professor of Law, Georgia State University College of Law

Mr. Tures’ main argument against my charge that the Court has always been ideological, and is today extremely partisan, centers around the nonpolitical cases the Court resolves with unanimity or close to it. However, I would argue that we do not judge professional sports teams by how well they do in the regular season; we judge them by how they do in the playoffs. 

The Court is not defined by ERISA (Employee Retirement Income Security Act) cases or technical statutory interpretation cases but by country-changing decisions on topics, such as abortion, affirmative action, separation of powers, church and state, gun control, and other similar issues. On those questions, the current Court is divided ideologically and strictly along party lines. The justices are either fully partisan or ideological or both in the cases where it really matters.

The Supreme Court is composed of life-tenured government officials who, with four other votes, have virtually unreviewable power. If a justice feels strongly about an issue, especially one they have thought about for a long time, and it is an issue that affects the entire country, the justice will inevitably make the decision most consistent with their values and experiences regardless of the prior law. Given the justices’ job description and human frailty, the emphasis on the personal over the legal is inevitable. The resolution of cases that have no bearing on contemporary politics is simply irrelevant when assessing the true political nature of the U.S. Supreme Court.

U.S. Supreme Court Is Less Partisan Than We Think

By John Tures – Professor of Political Science, LaGrange College

Mr. Segall is correct that a Supreme Court majority has virtually unreviewable power. It is therefore shocking that even when picked by partisan presidents, and confirmed by a partisan legislative body, there is so much unity on the court. According to Michael D. Berry of The Federalist Society, “[Justice Kavanaugh] is just as likely to vote with Justices Kagan and Jackson (80% of the time) as he is with Justice Alito… Justice Thomas was the colleague Justice Kavanaugh voted with the least often. For his part, Chief Justice Roberts voted with his colleague to the left, Justice Kagan (82%) more frequently than with his colleagues to the right, Justice Alito (78%), Gorsuch (76%), and Thomas (75%).” In Politico this month, Sarah Isgur and Dean Jens reported “Only five of 57 cases — just 8 percent — were decided 6-3 with the six Republican appointees all on one side and the three Democratic appointees on the other.”

A lifetime appointment gives the Justices the freedom to form bonds producing so many cases of Supreme Court unanimity. The friendship between Antonin Scalia and Ruth Bader Ginsburg could not survive in a system of elected judges influenced by the extremes in the primaries. Justices Sonia Sotomayor and Amy Coney Barrett used lifetime appointments to explain their bipartisanship at the National Governors Association’s “Disagree Better Initiative.” Justice Barrett stated, “We don’t sit on opposite sides of an aisle. We all wear the same color black robe. We don’t have red robes or blue robes,” according to The Washington Post.

Many Unanimous Cases Are Vitally Important to the Country

Mr. Segall claims that not all votes are the same, which is a good point. The few partisan disagreements could matter more than the majority cases of concurrence. It’s also important to note in Supreme Court votes that not all decisions are made with majority rulings and dissenting opinions. In many cases, justices vote to keep lower court rulings on many of these issues Mr. Segall cites. Few country-changing decisions were bigger than former President Trump’s bid to overturn the results of the 2020 election, where Supreme Court unanimity was paramount.

The country is often heavily influenced by some of those “technical statutory interpretation cases,” that Mr. Segall mentions where there is often unanimity. A key example involves the U.S. v. Carolene Products 1938 decision where Justice Harlan F. Stone’s Footnote 4 stated that the “Court would apply stricter standards of review to laws that targeted ‘discrete and insular minorities.’” The ruling was critically important to the American government and economy far beyond the 1923 Filled Milk Act.

It would be nearly impossible to purge any shred of partisanship from a political institution. But Americans can be proud that their court has done an admirable job of minimizing it, perhaps more than we think.

About The Authors

Eric J. Segall graduated from Emory University, Phi Beta Kappa and summa cum laude, and Vanderbilt Law School, where he was research editor for the Law Review and Order of the Coif. After clerking for two federal judges, he worked for Gibson, Dunn & Crutcher and the U.S. Department of Justice, before joining Georgia State in 1991.

Segall is the author of the books “Originalism as Faith,” and “Supreme Myths: Why the Supreme Court is not a Court.” His articles have appeared in most of the top law reviews and his op-eds and essays have appeared in the New York Times, The Atlantic, SLATE, and Vox among others. He has appeared on CNN, Fox News, MSNBC, France 24 and all four of Atlanta's local television stations. His podcast is Supreme Myths.

John A. Tures earned his Bachelor's Degree in Communications and Political Science from Trinity University in 1992, his Master's in International Affairs from Marquette University in 1994, and his Ph.D. in Political Science from Florida State University in 2000. He worked for Evidence-Based Research, Inc., and has taught at LaGrange College since 2001, where he is now a Professor of Political Science. He writes columns for numerous newspapers and magazines, and articles for professional journals. He is married to Elizabeth Tures, a Language Arts teacher at LaGrange Academy, and has two children, Asher (who graduated from Agnes Scott College) and Zach (LaGrange Academy).