The Politicization of the Supreme Court: A Look at Jackson’s Nomination and More

Above: The U.S. Supreme Court.

By Nicholas Urbati ‘25

Ketanji Brown Jackson will be sworn in as the next Supreme Court justice of the United States in the upcoming months after being confirmed on a 53-47 vote on April 7, 2022. The first Black woman in history to serve on the Court, Jackson’s confirmation process is microcosmic of a deep-rooted trend: the Supreme Court’s increasing politicization. 

Leadup to Nomination

On January 27, 2022, the 83-year-old, liberal Justice Stephen Breyer announced his retirement from the Supreme Court of the United States in a letter to President Joe Biden. Retirements by justices on the court are typically timed to ensure that they are replaced by one of like-minded beliefs – recall in 2018 when conservative Justice Anthony Kennedy retired under a conservative administration. Breyer’s decision to step down created an opportune moment for President Biden. It not only allowed him to nominate a justice, but it also allowed him to fulfill a campaign promise to nominate a black woman to the court, which granted him a crucial victory through House Majority Whip Jim Clyburn’s (D-SC) influential endorsement in the 2020 South Carolina primary.

Fulfilling that promise, however, did not come without difficulty. First, it was unpopular among the public per polling data. An ABC/Ipsos poll from January stated that 76% of Americans wanted Biden to “consider all possible nominees.” Biden, already suffering from low approval ratings, was facing another seemingly unpopular decision. However, the commitment was important for Black Americans: per an AP-NORC poll from late February, while only 48% of Americans stated that it was important a Black woman became a Supreme Court Justice, 63% of Black Americans stated it was. The fact that Black Americans are a key voting bloc for the Democratic party put considerable weight for Biden to stay true to his promise.

Second, Biden had to decide who he would nominate. With few Black women in high judicial positions, his options were relatively small. Only four main candidates were discussed: Ketanji Brown Jackson, J. Michelle Childs, Leondra Kruger, and Leslie Abrams Gardner. The two choices that ultimately attracted the most attention were Judges Jackson and Childs.

Jackson was the favorite based on historical trends of past Supreme Court nominees. She was a judge on the D.C. Circuit Court of Appeals, the second-most influential federal court in the United States, has had experience in both private and public practice, and holds two Ivy League degrees. As for Childs, she is a South Carolina federal District Judge who came from a public-school background.

Similar to levying his endorsement to ensure a Black justice, Clyburn attempted to do the same again with Childs, a judge in his home-state. His bid even received bipartisan support from Senator Lindsey Graham (R-SC), who called her a “fair-minded, highly gifted jurist.” Both also criticized the over-representation of Ivy League degrees of Supreme Court Justices – a reference to Jackson’s Harvard education – and instead touted Child’s public-school background. In their eyes, if Biden was determined to expand the diversity of the court, academic diversity should be an objective too.

Still, even with Clyburn and Graham’s aggressive lobbying, the White House released a statement on February 25 notifying that Biden had chosen to nominate Judge Jackson. While the South Carolina Delegation’s attempts were unsuccessful, they did showcase how state politics plays into Supreme Court nominations.

Reactions to the Nomination

Biden did make the correct choice per polling data. As shown through a Gallup poll, Judge Jackson had one of the highest levels of initial public approval among any of the recent nominees at 58% (Gallup has measured the last 12). Comparatively, justices nominated under the Trump administration had initial approval levels of 45% for Gorsuch, 41% for Kavanaugh, and 51% for Barrett. 

Though, what the public deems acceptable does not always translate to the Senate. Indeed, Jackson’s nomination generated invariable partisan commendation and ire. Graham aired his disappointment with the decision, saying the “radical Left has won President Biden over again,” despite being one of three Republican senators supporting Jackson’s confirmation to the D.C. Circuit Court of Appeals in 2021. The Biden administration was seeking a bipartisan confirmation, and Graham had been a potential senator to fulfill that goal; however, the chances of Graham voting yes appeared minimal at best following his remark. Statements from other potential bipartisan votes – Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) – were more positive: they congratulated Jackson and pledged their diligence towards vetting her in the future.

Republican Senators on the judiciary committee emphasized how they look forward to meeting with the judge and, as Senator Ted Cruz (R-TX) put it, treating the nominee with “dignity and decorum” during questioning. This latter statement reveals another trend of politicization surrounding the Court: how senators question the nominees during judicial hearings.

A Look at Past Claims of Unfair Treatment

Republicans in the upper chamber have for decades claimed unfair treatment during judicial hearings. Conservative journalist Henry Olsen describes how “Democrats broke norms surrounding the confirmation of Supreme Court justices” in 1987 with their “[opposition] to the nomination of Robert Bork.” As the Pew Research Center explains, for the most part up until around the 1960s, senators typically deferred to the president on Supreme Court nominees – the president would choose and as long there were not any egregious issues, they would be confirmed by wide, bipartisan majorities. While conservatives like Olsen defend Bork as an excellent legal mind who was a victim of character assassination, the reality was somewhat different. Bork’s support was tenuous among even some Republicans at the time; 6 would go on to vote against him. Many of Bork’s criticisms for Democrats were seemingly based on nonmainstream judicial opinions rather than unsubstantiated character attacks. When former President Ronald Reagan would go on to nominate the less controversial, yet still conservative, Anthony Kennedy, he would be confirmed with a 97-0 vote.

Republicans call back to Bork to this day as the origin for partisan battles over nominations. Senator Ben Sasse (R-NE) stated in his opening address during the beginning of Jackson’s hearings that “we started down this road of character assassination in the 1980s with Judge Bork’s hearings, and senators have been engaged in disgusting theatrics ever since.” Republicans further defend their point of unfair treatment with claims of malalignment by Democrats during recent hearings of Justices Brett Kavanaugh and Amy Coney Barett. Indeed, this is why Cruz, along with others, emphasized how Republicans would treat Jackson with more dignity than what had been shown to previous conservative candidates in their eyes.

Complaints of unfair treatment are not exclusive to one party, however. Democrats have also made complaints of rising politicization over nominations. The death of Justice Scalia in 2016 provided former President Obama the opportunity to appoint a justice. Moreover, he would have the rare opportunity to replace a conservative seat on the court with a liberal one. Obama nominated Merrick Garland, the then Chief Justice of the D.C. Circuit Court of Appeals; however, former Senate Majority Leader Mitch McConnell (R-KY) refused to hold hearings on Garland because it was an election year, an action without precedent since the Civil War. McConnell went on to brag about his refusal to hold hearings, saying, “One of my proudest moments was when I looked at Barack Obama in the eye and I said, ‘Mr. President, you will not fill this Supreme Court vacancy.’”

Again, Democrats would fume at McConnell in 2017, when he would invoke the nuclear option, which eliminated the 60-vote threshold for the Supreme Court, meaning only a simple majority was needed for confirmation. McConnell and Republicans defended this move by citing the actions of Democrats in 2013, when Harry Reid invoked the nuclear option for all federal judges besides the Supreme Court due to persistent Republican filibustering.

The Judicial Hearings

After four tumultuous days of confirmation hearings for Judge Jackson, it was time to hear the public verdict on Republicans’ promise to remove politication from the process.

Based on public poll numbers, they did not do so well. A Quinnipiac University poll stated that 52% of people disapproved of Republican senators’ handling of the hearings to a mere 30% in support; on the contrary, only 34% disapproved of the approach by Democratic senators. So, what happened?

Principally, many analysts placed GOP questioning as a mere trial for midterm messaging – in other words, a purely political goal.  Senate Judiciary Committee Chairman Dick Durbin, a Democrat, lamented that while many of the questions were respectful, many others were “an opportunity to showcase talking points for the November election.” One theme pushed, for example, was critical race theory, a hot-button issue that led to much success for Republicans in the 2021 Virginia Gubernatorial election. Cruz was the most steadfast in pursuing this, eventually asking Jackson if she thought babies were racist while holding a children’s book. Another theme pressed was that over transgender rights, with Senator Blackburn of Tennessee asking if Jackson could define what a woman was. A short browse through the Republican National Committee’s Twitter account displays them posting clips of the moments mentioned above.  

Is This a Recent Trend?

It is not surprising that the Supreme Court is a target for increasing politicization. In a time where Congressional gridlock and polarization are an unrelenting force, the Supreme Court has an important role in the policy-making arena. When abortion is only permitted through Roe V. Wade, who is on the Court matters a lot for either party. As another example, it was only through the Supreme Court in 2014 that gay marriage was legalized in all fifty states, not Congress. 

It is also interesting to note that the notion of an apolitical Supreme Court is a new concept. Historian Joshua M. Zietz wrote in Politico that, “for the better part of its existence, the Supreme Court was a political institution, populated by men and women who were politicians, political advisers and politically motivated actors.” Appointees to the court in the past were chosen due to previous partisan experience in all levels of politics, not because of an apolitical stance. While political theatrics in confirmation hearings may be increasing, the idea of a political Supreme Court is not an atypical trend.

The Future

While a politicized court may be the reality, that does not mean it is one the public favors. A broad majority of Americans believe that justices should not be influenced by their political beliefs, an opinion held amid the time of falling favorability ratings of the institution. Beliefs of impartiality in our judicial system are important for the American people, especially when the decision of just five people can have broad consequences for the country.

So, what does this mean for the future of the court? Rising disapproval and concerns over neutrality may spur some initiative for changing the institution. Indeed, it seemed to be a large enough issue for President Biden to create a presidential commission that did suggest some changes. However, what is most likely to occur is for more Americans to begin to see the court for what it is and what it always has been: an inherently political institution, not a neutral one.