As Judge Brett Kavanaugh prepares for his confirmation hearings, no institution of American government is more shrouded in mythology than the Supreme Court. The uber-myth is that the court is an objective institution that makes decisions by applying the facts of a case to the relevant statute, constitutional text, intent of the framers and precedents. But in fact, scholars such as Eric Segall write, the role of politics is so substantial that “the Supreme Court is not a court and its justices are not judges.” Here are five of the most persistent misconceptions.
in election years.
Senate Majority Leader Mitch McConnell (R-Ky.) cited this concept when declaring, in the hours after Justice Antonin Scalia’s death in February 2016, that the upper chamber should not consider a replacement during a presidential election year. “The American people should have a voice in the selection of their next Supreme Court justice,” he said. The Washington Post’s George Will wrote that McConnell was following a rule devised by Democratic Sens. Joe Biden and Chuck Schumer: “Supreme Court justices should not be confirmed in presidential election years.” President Barack Obama’s final Supreme Court nominee, Merrick Garland, never got a hearing.
But while the Senate has rejected Supreme Court nominees during election years (six of 15 candidates) far more often than during the first three years of a president’s term (17 percent of about 160 candidates), it has still confirmed a majority: William Johnson (1804), Melville Fuller (1888), George Shiras Jr. (1892), Louis Brandeis (1916), John Clarke (1916), Frank Murphy (1940) and Anthony Kennedy (1988). The Senate has approved six other justices during the “lame duck” period between the election and a president’s departure, including John Adams’s nomination of John Marshall in 1801 following Adams’s loss to Thomas Jefferson.
only important cases.
Losing litigants appeal as many as 8,000 cases per year to the Supreme Court, and the justices hear just 1 percent of them. It would be natural to assume that a court concerned with influence would pick the most important cases. Several studies, such as those from professors H.W. Perry (University of Texas), Doris Marie Provine (Arizona State University), Lee Epstein (Washington University in St. Louis), Andrew D. Martin (University of Michigan) and me show that the court focuses on the weightiest matters. The media, too, emphasizes the most salient cases.
Nevertheless, the job of the Supreme Court, which sits atop the federal judicial hierarchy, includes harmonizing federal law among the 13 federal circuits directly below it. Federal retirement benefits must be the same for workers in the 9th Circuit as for workers in the 1st Circuit. One result of this need for homogeneity is that the Supreme Court hears a substantial number of Employee Retirement Income Security Act (ERISA) cases. The Constitution’s commerce clause, which gives Congress the authority to “regulate commerce . . . with the Indian Tribes,” also leads to many relatively low-salience Supreme Court cases. In Patchak v. Zinke, for instance, the Supreme Court upheld the power of Congress to demand that a pending lawsuit by the Pottawatomi Indians against the secretary of the interior be dismissed.
The principle of judicial review gives the Supreme Court the power to strike laws passed by Congress and actions taken by the executive branch, including the president; in Marbury v. Madison in 1803, the justices claimed the authority to say what the law is. The high court has reaffirmed this point over the years — in the 1958 14th Amendment case Cooper v. Aaron , about desegregation in Little Rock; in the 1997 First Amendment case City of Boerne v. Flores , striking down a law that tried to determine how it could adjudicate religious-freedom questions.
Yet the justices do not always get their way. A seminal article by political scientist Robert Dahl found that the Supreme Court was most effective in holding up legislation, but if it blocks legislation that the people desire, the president and Congress can threaten the institutional authority of the court — by packing the court, limiting its appellate jurisdiction and cutting its budget — in the short run. In the longer run, presidents can nominate justices who will support the legislation in question. Although Franklin Roosevelt failed to pack the Supreme Court with extra jurists to support his New Deal agenda, for instance, he eventually appointed eight new justices to fill extant seats. They signed off on policies, such as minimum-wage and maximum-hour laws, that earlier courts rejected.
the discretion of judges.
Because federal judges are not elected and can be removed only by a cumbersome impeachment process, scholars and judges have tried to develop means of limiting the power that jurists have. One such mechanism is the judicial philosophy known as originalism. While there are many permutations of originalism, they all rely substantially on the text of the statute or constitutional clause under construction, as well as the original public meaning of the statute or clause. As Judge Robert Bork has written, “A legitimate Court must be controlled by principles exterior to the will of the Justices,” such as “text and history.”
Unfortunately, as Justice Samuel Alito recently wrote in Janus v. American Federation of State, County, and Municipal Employees , “at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees.” An overwhelming number of legal disputes exceeded the imagination of the framers. The authors of the Fourth Amendment (protecting Americans’ “persons, houses, papers and effects”) could not have imagined police monitoring a suspect’s location without a warrant through cellphone towers. There exists no evidence that any of the framers of the 14th Amendment’s equal-protection clause thought the clause would protect women, as Supreme Court rulings eventually decided it must. Even Bork realized that originalist methods don’t answer all modern questions and that originalist judges will inevitably make “value choices.”
When swing Justice Lewis Powell resigned from the Supreme Court in 1987, Republican President Ronald Reagan nominated Bork to take Powell’s place. As a conservative judge and legal scholar, Bork had written extensively about major constitutional issues, so he declined the usual tactic of dodging Judiciary Committee questions about matters that might come before the court. Many scholars declared that this was why his nomination failed. As political scientist David Yalof has concluded, “Bork’s lecture-like answers to senators’ questions actually harmed his own cause.” In “Battle for Justice,” journalist Ethan Bronner outlines the problem: “Bork’s strong association with the right had to be played down and his stature in the legal profession played up,” and his testimony worked against those goals.
But according to Paul Collins and Lori Ringhand’s exhaustive examination of Senate Judiciary hearings, subsequent nominees answered just as many questions as Bork did. The difference is that they answered the questions correctly — at least from the viewpoint of the American people and their representatives. Kennedy, for instance, told the committee that he supported a right to privacy, that the First Amendment covered more than just explicitly political speech and that the equal-protection clause required more than the lowest possible constitutional standard (a rational basis) for gender discrimination to be upheld. All of these positions were at odds with the views Bork pronounced.