Last month, Supreme Court Justices Amy Coney Barrett and Sonia Sotomayor appeared at a panel to expound upon a favorite theme of Supreme Court justices: that Supreme Court Justices are principled figures untainted by politics.
“Life tenure does insulate us from politics,” said Barrett. “And, so, it’s not just that we’re not Obama judges and Trump judges, but we’re also not Democratic judges or Republican judges. We don’t sit on opposite sides of an aisle. We all wear the same color black robe. We don’t have red robes and blue robes.”
This is a pleasant myth judges like to spread, not only because it flatters them but also because it’s the source of their power and authority. One peril of flattering mythology is that its objects are susceptible to it. At the moment, there are enormous stakes riding on whether and to what extent Sotomayor in particular actually believes it.
Sotomayor is 69 years old and a diabetic former chain-smoker. If she retires between now and January, she would be replaced by a much younger Democratic appointee. If she remains in her seat, the seat’s orientation will be determined by a race between how long she can remain on the job and how soon Democrats can regain simultaneous control of the presidency and the Senate, the former of which is likely to turn Republican next year and the latter of which is almost certain to.
As Josh Barro notes, the public-minded decision is obvious: Sotomayor should retire now, when she can be replaced with a like-minded justice, rather than gamble. But that decision in turn would require her to acknowledge the partisan nature of her role. Strategic partisan retirements, while common, undercut the myth that justices make decisions blissfully unaware of partisan implications.
Barrett has been particularly insistent on denying that she or her colleagues are in any way political. Her event with Sotomayor follows a public-relations campaign (a cynic might even call it political messaging) of remarks insisting the Court is nonpolitical.
And while it is true that the Supreme Court is more intellectual and less nakedly partisan than elected bodies, her highbrow case is mostly hokum.
Several decades ago, there really was a vast gulf between the workings of the Court and the political agenda of the politicians who appointed its members. The ideological character of Supreme Court justices had only a loose relationship to the ideology of presidents who selected them. Byron White, a Kennedy appointee, frequently joined conservatives, while some of the Court’s most liberal members, like Harry Blackmun and David Souter, were Republican appointees.
But this is no longer true, for one main reason: Republicans decided this level of unpredictability was incompatible with their goal of reshaping the courts along conservative lines. The Federalist Society is primarily designed to solve the problem of nonpartisan judges by creating a network of conservative jurists that authenticate the ideological commitment of judges and ensure that Republicans only appoint jurists who will reliably toe the line. Progressives have formed their own group, the American Constitution Society, to play the same role on the left. The mystery is rapidly being drained out of the process.
There is a long-standing analytical debate about the independence of the courts. Before Bush v. Gore, when Republican-appointed judges basically made up precedent and declared it would never apply to any case again in order to prevent a recount they feared Al Gore might win, it was common for legal scholars to claim judges really were independent. Over time, the skeptics have been winning the argument.
One recent study finds “the political affiliations of panel judges can help predict outcomes in a broad set of cases that together represent over 90% of circuit court decisions.” Another studied the effect of stock prices in the immediate wake of Ruth Bader Ginsburg’s death, and found — surprise! — that firms that had donated heavily to Republican candidates enjoyed an immediate boost. The justice who replace RBG was, of course, Barrett. However Barrett may wish to protest her nonpolitical character, the market knew otherwise.
In the face of this mounting evidence, Barrett’s pious claims of innocence seem disingenuous. Consider her bold line about how Supreme Court justices all wear the same color robes, rather than red and blue jerseys. That may be true. But members of Congress also don’t generally wear red- and blue-colored jerseys, either. They clad themselves in relatively similar blue and gray blazers (or, for female members, a wider assortment of colors) that do not indicate their deep partisan attachments.
Barrett herself was chosen not because Donald Trump admired the depth and rigor of her legal philosophy, but because he and his allies believed she would vote the right way and — on account of her youth — do it for a long time.
The rules of the game encourage parties to install the youngest and most politically reliable justices they can. The question before Sotomayor is whether she’ll play the game or pretend it isn’t happening.
