[By Bhanu Dhamija]

Some recent judgments by the Supreme Court have been in line with the Republican party’s conservative stances. Democratic-leaning liberal commentators are tripping over each other calling the Court compromised and partisan. But there can be no better example of the pot calling the kettle black, because evidence shows that the Court has been remarkably impartial.

Let’s first look at the current term of the so-called Trump Court. The same Court that overturned Roe v. Wade—and invited liberals’ wrath—also ruled in favor of the Biden administration’s liberal immigration policy.[1]

In the previous term, the Court’s impartiality surprised many analysts. In an October 2021 article entitled “The Biggest Thing Court Watchers Are Getting Wrong About SCOTUS,” Slate magazine reported that Court rulings were almost 50% unanimous with all nine justices agreeing, while this occurred only 33% of the time on average going back to 1937. Professor Lee Epstein, expert in empirical legal research, noted, “So you see above-average unanimity; you don’t see the 6–3 decisions that we thought there’d be a lot of, along partisan lines.”[2]

Other scholars have also vouched for the Court’s fairness. In 2018, Sarah Turberville and Anthony Marcum wrote in The Washington Post: “The court values consensus, and justices agree far more often than they disagree. The ratio is staggering. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result—averaging 36% of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15% of decisions. The 5-to-4 decisions, by comparison, occurred in 19% of cases.”[3]

The ideological leaning of the Court changes over time but the data shows it always hovers around the middle. Based on Martin-Quinn scores of each Justice’s voting record, Randy Schutt has tracked each Justice’s leaning since 1937 (see chart), and it confirms that the median Justice (represented by yellow) doesn’t sway too far or for too long from the middle.[4]

Recently, some Justices themselves—both conservative and liberal—broke from tradition to vouch for their colleagues’ nonpartisanship. Stephen Breyer, who recently retired and was the Court’s most senior liberal Justice, wrote in his new book, “It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”[5] Justice Amy Coney Barrett, a conservative, said: “This court is not comprised of a bunch of partisan hacks…Judicial philosophies are not the same as political parties.”

However, lately the Court has rattled partisans so badly that they ignore its impressive record of neutrality and have started calling it names. One reason may be that the recent decision to overturn Roe v. Wade (1973) reopens the issue of legal abortion which many had considered settled law. Another possibility is that the Court was truly unfair, as it was in 1857 when it ruled against Dred Scott, concluding that the Constitution’s rights and privileges did not apply to people of African descent.

But when Americans conclude that a Supreme Court ruling is “unacceptable,” the right course of action is to change the law, not call the Justices liars or partisans. Partisans go wrong when they try to bully the Court rather than act through Congress. In his article “Gridlock in Congress Has Amplified the Power of the Supreme Court,” New York Times columnist Adam Liptak wrote, “In years past, [a Court ruling] might have been the start of a dialogue with Congress, which after all has the last word on what statutes mean, because it can always pass new ones. But thanks to legislative gridlock, Congress very seldom responds these days to Supreme Court decisions interpreting its statutes—and that means the balance of power between the branches has shifted, with the justices ascendant.”[6]

In a democracy, the courts must never be used to achieve political ends. America is fortunate to have a system where courts can act only as the arbiter of laws and not their maker. Otherwise the country would stand on a slippery slope, creating a plethora of unfair and unenforceable laws. American judges are restricted, because the nation has a decentralized system of courts and legislatures, and a method of appointment which vets them in public. This makes a more balanced court, with judges from both judicial philosophies, Originalists and Living Constitutionalists. While the former try to stick to the Constitution’s word, the latter try to apply its spirit.

It’s best to leave America’s balanced and fair Supreme Court system alone.

[1] A Court for the Constitution, Editorial Board, Wall Street Journal [https://www.wsj.com/articles/a-supreme-court-for-the-constitution-originalism-dobbs-abortion-religious-liberty-11656711597]

[2]The Biggest Thing Court Watchers Are Getting Wrong About SCOTUS, Slate, October 2021, https://slate.com/news-and-politics/2021/10/supreme-court-data-partisan-divides-unpredictable.html

[3]Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common;https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/




[Dhamija is the author of ‘Why India Needs the Presidential System‘.]