Last week, numerous progressives strongly criticized Pete Buttigieg after the Mayor of South Bend and candidate for the Democratic presidential nomination supposedly told a reporter for Cosmopolitan that if he were to win the election, he would appoint justices to the Supreme Court in the mold of retired Justice Anthony M. Kennedy. For example, in response to a tweet by an ACLU researcher stating that Buttigieg “wants more Supreme Court justices who are like Justice Kennedy” but that Kennedy voted to sustain the Muslim Travel ban, to hamstring union dues collection, and to allow voter suppression, Senator Bernie Sanders tweeted that he, by contrast, would model his Supreme Court picks on Justices Ruth Bader Ginsburg and Sonia Sotomayor.
However, Buttigieg never said he would select justices like Kennedy, as anyone who bothered to read the short Cosmo article would know. On the contrary, Buttigieg said that he would “definitely” appoint justices who share his progressive values. He mentioned Kennedy only in the context of explaining a proposal he tentatively backs to reform the Supreme Court appointments process. Referring to a forthcoming Yale Law Journal article by Professors Daniel Epps and Ganesh Sitaraman, Buttigieg explained their proposal, under which Congress would expand the size of the Supreme Court to include fifteen justices: five would be Republicans, five would be Democrats, and the remaining five would be chosen by the first ten from lower court judges. Modeled on the appointment of “neutral” arbitrators, the Epps/Sitaraman proposal, Buttigieg told Cosmo, would depoliticize the Court and lead to the selection of “more justices who think for themselves . . . like Justice Kennedy or [retired] Justice [David] Souter.”
That particular phrasing was inappropriate because it implies that other justices do not think for themselves, but it should be crystal clear that Buttigieg did not say—as Sanders and other critics assume he did—that under the existing system of selection he would nominate people with Justice Kennedy’s overall views. The wholly unwarranted backlash against Buttigieg’s comments thus underscores once again the pathologies of our culture of social-media-fueled outrage, in which people react first and inform themselves later or, more likely, not at all.
Yet if the critics of Buttigieg were wrong to jump on him for a point he never made (and they most assuredly were wrong for doing so), his comments can and should be examined for what they imply. As I shall explain, those comments demonstrate a naïveté about the relation between law and politics.
Two Questions for Buttigieg
Buttigieg is not a lawyer. Moreover, his support for the Epps/Sitaraman proposal is tentative. He has also suggested (in the Cosmo interview and elsewhere) that he might favor term limits for Supreme Court justices. More broadly, Buttigieg proposes creating a special commission to propose a means by which to “make the Supreme Court less political.” Thus, while it is possible to raise questions about particular aspects of the Epps/Sitaraman proposal (such as whether it violates the Constitution’s Appointments Clause and thus requires a constitutional amendment), fair-minded criticism of Buttigieg’s tentative endorsement of the Epps/Sitaraman proposal should focus on the big picture.
Accordingly, we should ask whether the Supreme Court has recently become especially political and, if so, whether changes to the appointments process of the sort that Buttigieg’s commission would study can fix the problem. The short answer to both questions is no.
Politicization is Nothing New
Implicit in the worry that, as the Cosmo article states (quoting Buttigieg), “the Supreme Court is becoming ‘yet another political body,’” is the proposition that there was a time when the Court was not a political body. Yet history teaches otherwise.
The Court’s basic power of judicial review was established in the crucible of high-stakes politics. Following the victory of Thomas Jefferson and his Democratic-Republican Party in the election of 1800, the lame-duck Federalist-dominated Congress created new judgeships and other jobs, and packed them with Federalists. One such Federalist was William Marbury, whose commission as a Justice of the Peace was not delivered in the rush of the change of the administration. His case, Marbury v. Madison, asserted the Court’s power of judicial review, but the Court declined to order Jefferson or Secretary of State James Madison to deliver Marbury’s commission in part out of fear that Congress would retaliate by impeaching the Federalist Chief Justice, John Marshall. Conflict between the Federalist-dominated Marshall Court and Jeffersonians (and later Jacksonians) would persist for decades.
Likewise, the Supreme Court under Chief Justice Roger Taney was the subject of intense political debate. Taney’s decision for the Court in the infamous Dred Scott case may have been intended to end controversy over slavery but it ended up as an important contributor to the Civil War.
From the 1890s until the 1930s, the Supreme Court viewed the Constitution as embodying principles of laissez-faire economics. The Court struck down laws forbidding child labor, setting limits on workers’ hours, protecting labor unions, and more. Progressives frequently attacked the Court in expressly political terms. When the justices finally changed course, it appeared to be in response to the threat by President Franklin D. Roosevelt to pack the Court with New Dealers.
Although Congress rejected Roosevelt’s Court-packing plan, within a few years Roosevelt transformed the Court anyway. Yet within a few more years the Court was once again at the center of political controversy. Decisions protecting civil rights of African Americans, civil liberties, and the rights of people suspected of crimes led to attacks on the Court as overreaching. In 1956, over a hundred members of Congress signed the Southern Manifesto condemning the Court for a “clear abuse of judicial power,” and “Impeach Earl Warren” signs appeared throughout the South.
Accusations and counter-accusations of judicial activism by people who disagree with the Court’s rulings have hardly ceased since then. Conservatives object to what they regard as poorly justified rulings protecting abortion rights, LGBT rights, and church-state separation, while liberals object to what they regard as poorly justified rulings protecting corporate speech, states’ rights, and gun rights. In identifying politicization as a feature of the Supreme Court, Mayor Pete hardly identifies a new problem.
Supreme Court as Symptom, Not Disease
Nonetheless, for the sake of argument, let us grant that the Supreme Court has lately become more political than at some point in the past. As evidence for this proposition, we might note that since the appointment of Justice Elena Kagan in 2010, each of the Court’s Democratic appointees has been more liberal than each of its Republican appointees. In prior decades the Court was divided, but the divisions did not always track party politics. For example, Earl Warren and William Brennan were two of the most liberal members of the Court Warren led; they were both Republican appointees; Felix Frankfurter and Byron White were Democratic appointees but generally more conservative than Warren and Brennan. Insofar as Buttigieg worries about the public perception, maybe it is especially bad for the Court’s divisions to track partisan divisions.
Yet if that is the worry, then the Buttigieg approach of looking to change the appointments process aims at the wrong institution. Over the last several decades, the two major parties have each become more ideologically coherent and they have collectively drifted further apart from one another. A Supreme Court appointment in the mid-1950s might have been controversial, but it would not have divided politicians on partisan lines. Today, the sort of nominee who can pass a Republican litmus test will, for that reason, likely fail a Democratic litmus test, and vice-versa. Under such circumstances, political input into the appointments process will not yield consensus picks, because the middle ground is largely empty.
The Epps/Sitaraman proposal would circumvent the problem by having justices chosen expressly for their party affiliation choose additional justices based on consensus or compromise. Yet if the core problem is that justices now reflect the same polarization as the political institutions, then it is hard to imagine the justices reaching consensus any more readily than senators currently can. Moreover, given the perceived stakes, it is quite possible that each party will take steps to ensure that “their” appointees play hardball when it comes to selecting “neutral” justices. I would not say that the Epps/Sitaraman proposal could not possibly work; I do think that it is at best an effort to treat an effect—the infiltration of heightened polarization from the elected branches into the courts—rather than the underlying problem. And the underlying problem is polarization in our political branches.
At this point reader might fairly ask “okay wise guy, what’s your solution to polarization?” I confess that I do not have one. “Elect centrists” might seem like a good answer, but part of the problem of polarization is that perceptions of centrism differ by party. I thought that the Senate should have confirmed Judge Merrick Garland to the Supreme Court because Garland is a moderate. Mitch McConnell and his caucus see anyone to the left of Samuel Alito as a liberal.
But while I do not know how best to address the pathologies of American political polarization, at least I know that the Supreme Court appointments process is not at the root of the problem. Judicial polarization is only a symptom. Political polarization is the disease.