- 1: Our Divided Courts
- 2: Politicians in Robes?
- 3: Expanding the Court
- 4: Term Limits
In the stormy aftermath of President Biden’s 2020 election, the campaign of Donald Trump and allied organizations filed dozens of lawsuits in state and federal courts, including the U.S. Supreme Court. It was an unprecedented — and ultimately violent — effort to overturn a legitimate election based on disproven conspiracy theories.
At least eighty-six different judges, some appointed by President Trump, rejected the cases as lacking merit. In the end, courts across the nation spoke with near unanimity to uphold the essential structure of the Constitution and American democracy. It showcased the vital role of our judiciary, which had been sorely tested in recent years by political clashes over Supreme Court nominations.
Inevitably, though, our courts do operate in a politicized environment. Federal judges are nominated by the president and must be confirmed by Congress. And after a comparatively more moderate period, the court has recently lurched hard-right, including its unpopular ruling to overturn Roe v. Wade, a shift widely attributed to the three Trump appointees.
In this special public radio documentary series, Parts 1 and 2 reconstruct the wild history of how we got into a cycle of escalating partisan battles virtually every time a seat opens up on the Supreme Court. This dilemma has left bitter feelings on all sides.
In Parts 3 and 4, we explore a fascinating menu of possibilities — including some creative new proposals — for ways to reduce the political influence on our courts.
Supported by the Democracy Fund and the Humankind Program Fund, in association with Documentary Educational Resources. Recording engineer: Antonio Oliart Ros. Associate producer: Marc Kilstein and Fred Thys. Special thanks to Ken Rogers, Noel Flatt, Brian K. Johnson, Cathy Graham, Steve Martin, Jake Cavicchi, Laura Carlo, Shawn Johnson/Wisconsin Public Radio, Andrew Logan, Drew Masziasz and Washington Week at WETA.
1: Our Divided Court
Because federal judges are nominated by the president and confirmed by the U.S. Senate, inevitably the process is somewhat politicized. But as hyper-partisanship has corrosively swept across American life, we’ll explore whether our judiciary has been infected.
The Constitution’s framers well understood that democracy is chaotic and messy. And they designed the judiciary to be relatively insulated from the volatility of our fractious politics. “The complete independence of the courts,” wrote Alexander Hamilton in the Federalist Papers “is particularly essential in a limited Constitution.” Lifetime appointments of federal judges and a respect for jurisprudential precedent were intended to promote stability.
It’s an incredibly important thing for the court to guard this reputation of being fair, of being impartial, of not being simply an extension of the terribly polarized political environment.”
–Supreme Ct. Justice Elena Kagan
Fair Play: The ideal of impartial judges
Our documentary project will examine whether this central characteristic of the judiciary is undermined by America’s present state of politicization – now touching practically every aspect of our society, from popular culture to public health.
Here we consider several clashes over our courts:
- In April 2020, in the first weeks of the U.S. coronavirus outbreak, the U.S. Supreme Court ruled that the Wisconsin presidential primary could not be delayed by a week to allow voters to use mail-in ballots.
- The revelation in 1937 that a justice then sitting on the Supreme Court had been a member of the Ku Klux Klan.
- The 1987 confrontation that set the stage for many battles to come, when Supreme Court nominee Robert Bork was ultimately blocked by vocal liberal opposition.
- The sexual assault allegations in 1991 by Anita Hill against Judge Clarence Thomas.
- The Florida recount case, in which the court decided by a 5-4 margin that George W. Bush would become president.
My name has been harmed, my integrity has been harmed. My character has been harmed.”
– Judge Clarence Thomas, responding to charges of sexual harassment
It did strike many people as a political decision by the Supreme Court. This is something that lasts.”
– Robert Barnes, Washington Post Supreme Court reporter on the 2000 case deciding the presidential election
2: Politicians in Robes?
The [Senate] rules changes have really had an impact. They’ve made it possible for the Trump administration to populate the courts.”
– Carl Hulse, New York Times
chief Washington correspondent and author, “Confirmation Bias”
In this divisive climate, will major rulings follow the predictable blocs of liberal and conservative justices, strongly associated with the party of the president who appointed them? How will this affect public confidence in the court, or at least support of “the way the Supreme Court is handling its job”, as measured by Gallup? Strikingly, the court’s approval rating is now the lowest on record.
All of these concerns have direct impact on the Court’s jurisprudence regarding key issues of the day: abortion, other health care access, voting rights, immigration, environmental protection, the power of labor unions, LGBT rights and an issue that has recently come to the fore: compliance with subpoenas.
I just thought that was an immoral, gross abuse of power that should never happen again.”
– Chief Justice Leah Ward Sears (ret.), Georgia Supreme Court
on refusing to hold a hearing for President Obama’s high court nominee
The battlelines harden
In this segment, we revisit a number of more recent chapters in the “judicial wars”:
- Republican Senator Mitch McConnell’s unprecedented refusal to consider President Obama’s Supreme Court nominee, Merrick Garland, following the sudden death of conservative judicial icon Antonin Scalia. McConnell asserted that the Senate should wait eleven months until a new president was elected.
- The powerful Senate rules changes by both Democrats and Republicans over how nominees are handled – all but ensuring continued intense partisan showdowns.
- The incendiary hearings involving allegations of rape by Prof. Christine Blasey Ford against Supreme Court nominee Brett Kavanaugh, who was ultimately confirmed by a two-vote margin.
We’ll also hear interesting comments by two justices, Elena Kagan and Sonia Sotomayor, about ways the nine justices try to maintain cordial relations, even when passionately disagreeing.
Drinking is one thing, but the concern is about truthfulness.”
– Senator Amy Klobuchar questioning Supreme Court nominee Brett Kavanaugh
This whole effort has been a calculated and orchestrated political hit.”
– Judge Kavanaugh before being confirmed
3: Expanding the Court
A majority of Americans now disapprove of the Supreme Court. When the decision to overturn Roe v. Wade decision was first leaked, the court’s popularity sank to the lowest level ever recorded. Now that the Supreme Court has revoked federal protection of abortion rights — in a 5-4 decision — new consideration is being given to reforming the court.
As pointed out by Emily Bazelon, New York Times magazine reporter (and Lecturer in law at Yale), the Republican party has not won the majority of votes in six of the last seven presidential elections. And yet vacancies on the Supreme Court have allowed Republican presidents to appoint six of the last ten justices. Does this skew the Court in a way that’s out of step with public opinion? Here we explore the history of “court-packing” as well as a range of other proposals intended to bring greater fairness and political independence to America’s judiciary.
I will appoint justices who will act as justices and not as legislators.”
– President Franklin Delano Roosevelt
Congress has no right to interfere with [our] work any more than we have the right to legislate.”
– Justice Samuel Alito
There has always been, between the three branches of government, this sort of tug of war over which branch has more or less power.”
– Kimberly Atkins
Boston Globe, attorney
4: Term Limits
The average American today lives a lot longer today than in 1789, when President George Washington signed the Judiciary Act, establishing America’s court system. The Constitution specifies that once federal judges are nominated by the president and confirmed by the Senate, they can hold their office “during good behavior,” in other words for life — unless they’ve misbehaved, that is.
But advocates of Supreme Court reform maintain there may be constitutional ways to institute term limits. It’s a concept that has attracted adherents across the political spectrum at a time when justices may live into their eighties and even nineties, sometimes facing ill-health. [Politically, though, the likelihood of such reform remains remote under present conditions.]
Another fascinating suggestion is to restructure the system so that an independent body, perhaps consisting of other judges — not the Supreme Court justices themselves, would select the cases that come before the high court. Thus the justices couldn’t tip the scales in favor of cases about policies they might personally wish to endorse (or reject), on controversies like gun rights or civil rights or a host of thorny issues. That would likely reduce politicization.
And we learn about the outsize influence of a powerful conservative legal organization — the Federalist Society — from whom President Trump drew the vast majority of his judicial appointments, including three seats on the Supreme Court. Critics complain this group lacks transparency about its major financial donors, as explained by author Jane Mayer, an investigative reporter at The New Yorker.
Finally, there’s the idea of promoting greater neutrality in our courts by ensuring more diversity among those who sit on the bench. At present, federal judges are typically drawn from elite schools with a relatively narrow range of life experiences. In practice this means it’s harder for people of different racial and cultural backgrounds to feel their needs are represented by the judiciary. (The ascendance of Justice Ketanji Brown Jackson in June 2022 added a broader mix to the Supreme Court.) We hear intriguing proposals to widen the pool of future judges.
President Biden’s commission to study judicial reform was established early in his presidency, but was not tasked with formulating recommendations. In its December 2021 report, the commission indicated interest in term-limits for justices, but not in increasing the number of justices.
To have any one person exercise that much power for 20, or 30, or 40 years, it just seems like a really bad idea to me.”
– Emily Bazelon, NY Times Magazine, Yale Law School
If Americans can’t have trust in the integrity of the law, we start to slide down that path we’ve seen in…failed democracies.”
– Aaron Tang, prof. of law, University of California/Davis
How do you transition from a court where justices were nominated and confirmed for lifetime appointments to a court on which they serve 18 year terms or something like that? But I think it’s a serious proposal.”
– Jonathan Adler, prof. of law, Case Western Reserve University
To learn more:
- Confirmation Bias, excellent account of judicial politics by Carl Hulse, New York Times chief Washington correspondent
- Supreme Ambition, the story of Brett Kavanaugh’s rise to the high court, by Ruth Marcus, Washington Post columnist
- Supreme Revenge, a powerful recounting of recent judicial wars, by PBS’ superb Frontline
- The Chief, the life and turbulent times of Chief Justice John Roberts, by Joan Biskupic
- Annual Gallup Poll on public approval/disapproval of the U.S. Supreme Court
- I’m the Judge Who Won in Wisconsin. This Principle is More Important Than Winning, by Jill J. Karofsky, New York Times, April 7, 2020
- Hear a 9-minute report from NPR’s Here and Now, based on the first hour of this project