There isn’t a lot nice to say about the Supreme Court these days. But the court’s recent series of rebuffs to former president Donald Trump and his fellow election deniers offer an opportunity to do that, and to examine the distinction between ideology and partisanship.
Still, in a moment when progressives routinely flay the conservative justices for supposedly rabid partisanship, it’s worth pausing to recognize that the situation is more nuanced than that: It’s not that this, or any court, is free from the temptations of partisanship, but this majority is far more driven by conservative ideology than by a desire to boost Republican political interests.
That was on welcome display this week, as the court rejected Trump’s bid to prevent the House Ways and Means Committee from obtaining his tax returns. Last week, it turned aside an effort from Arizona GOP Chair Kelli Ward to block the House Jan. 6 committee from obtaining her records — albeit with Justice Clarence Thomas and Samuel A. Alito Jr. noting their disagreement. Earlier this month, it refused South Carolina Sen. Lindsey O. Graham’s effort to avoid testifying before a Georgia special grand jury investigating election interference.
These aren’t Trump’s first such defeats: The court in 2020 cleared the way for a New York grand jury to obtain Trump’s financial records. And Trump & Company aren’t doing all that well in the lower courts, either. At the U.S. Court of Appeals for the 11th Circuit in Atlanta earlier this week, a conservative-dominated panel appeared skeptical about Trump’s claims that a special master was warranted to review the evidence seized in the August search of his Mar-a-Lago residence. (A Trump-appointed district judge had granted Trump’s request for the outside review.)
Of course, praising judges for refraining from behaving in a partisan fashion shouldn’t be necessary — that’s the essence of the job. And while nearly all the conservative justices have deep ties to the Republican Party — all but Justice Amy Coney Barrett worked in political positions in the administrations of Republican presidents — there is a difference between being pro-Republican and being pro-Trump.
These are, after all, establishment lawyers, some of whom have expressed private disdain for and public exasperation with the former president. Brett M. Kavanaugh thought Trump was a “buffoon” as he campaigned for the presidency in 2016. Chief Justice John G. Roberts Jr. was moved to issue an extraordinary public statement taking Trump to task after he blasted an “Obama judge” for a ruling protecting migrants seeking asylum. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said.
Trump deserved the pushback, but Roberts’s assessment was also willfully naive. A judge’s political pedigree matters and partisanship, whether knowing or subconscious, creeps into the high court’s rulings at times. By far the most disturbing example is Bush v. Gore, the court’s 2000 ruling halting the Florida recount and effectively handing the presidency to George W. Bush.
That decision, in which the conservative justices sided 5-4 with Bush, was so shoddy that the court itself declared it had limited value for future cases: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Justice John Paul Stevens, a liberal who was nominated by a Republican president, dissented bitterly, saying that the real loser in the case was “the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
How should we think about the current court? “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett said in a 2021 speech — choosing the curious venue of the (Mitch) McConnell Center at the University of Louisville, named after the GOP senator who engineered her rushed confirmation, to make that claim. “Judicial philosophies are not the same as political parties,” Barrett said.
True, and there are moments when the conservative majority’s ideological zeal outweighs whatever partisan instincts the justices might have. A political strategist with the GOP’s electoral interests in mind wouldn’t have advised the justices to overrule Roe v. Wade just months before the midterm election, and the court could have easily chosen not to hear the Dobbs case and have postponed deciding the issue.
Other times, it’s hard not to suspect that partisan considerations played a role in the court’s actions — or at least to wonder whether outcomes might have been different if the parties’ roles had been switched.
In February, splitting 5-4, the court intervened in an Alabama redistricting case; a lower court had ruled that the state needed to add an additional majority-Black district, but the justices blocked that decision from taking effect. Kavanaugh, in an explanation joined by Alito, said the court needed to act, under its election law precedents, because the voting was so imminent. In fact, as Justice Elena Kagan noted for the dissenters, “the general election is around nine months away; the primary date is in late May, about four months from now.”
Here, the majority’s ideological hostility toward the Voting Rights Act merged conveniently with its partisan preferences. A seat that would likely have gone to Democrats remained in Republican hands — as did seats in other states where lower courts followed the Supreme Court’s lead and refused to act because the election was supposedly too close.
This is an ideological court more than it is a partisan one. That might be cold comfort given the radical nature and drastic consequences of its views, but in a season of giving thanks, it’s what we have.