Holzer: A Political Supreme Court

Kavanaugh’s impact will be more narrow than it seems.

by Emory Holzer | 10/25/18 2:15am

 Major ramifications for generations to come: that seems to be the gist of opinions around campus and the country about the confirmation of Justice Brett Kavanaugh to the Supreme Court. Both sides of the aisle have galvanized their bases in reaction to the confirmation process and in preparation for midterm elections. Both sides of the aisle have painted the historically apolitical Supreme Court into a political issue to win seats in Congress. Not only have the confirmation votes themselves become more ideologically divided, but the process itself has been dragged out to take an average of 2.3 months.

In light of Kavanaugh’s exceptionally politically charged confirmation, I decided to look at data from the past eight years of Supreme Court votes to determine the polarization of the Court and how Kavanaugh’s confirmation will impact future rulings. Of course, the confirmation of Brett Kavanaugh has impacts beyond his voting power on the court. Here, I will only focus on the votes themselves. Further, though I believe it possible to place Kavanaugh on the Court’s ideological spectrum accurately, but to narrow my analysis, I will look at Kavanaugh as if he is a solid vote with the conservative block.

The portion of analysis most important to determining a court’s polarity is the distribution of vote outcomes. The least polarized court will vote unanimously nine to none on a particular decision, and the most polarized court will vote five to four. Surprisingly, about half of all of the Supreme Court cases since the 2010 term were decided by a unanimous majority. Meanwhile, only 20 percent of all cases were decided by a divided five to four majority. Compared to its public politicization, the Court is much less polarized. The Supreme Court was created to be, and still is, an apolitical body. Why, then, is the process of confirmation so political if the rulings themselves are not?

The Supreme Court only recently became a strong voting motivator. Politicians sensationalize the Supreme Court, revving up anger, and rousing people to vote. This dangerous sentiment damages the credibility of the Highest Court in the Land. Following this trend, we risk confirming future nominees for purely political reasons. An institution originally created in isolation from partisanship becomes overrun with it. Yet all is not lost. I believe that the Supreme Court has not yet reached this point. The past eight years of data decidedly show that the Court is not the political body elections have portrayed. Further, that the confirmation of Brett Kavanaugh will not drastically alter the Court, as many from both parties have argued.

Replacing Anthony Kennedy with Brett Kavanaugh on the Supreme Court could impact those cases decided by a 5-4 majority. With only the power to sway one vote, Justice Kavanaugh could not have impacted cases decided by nine to none, eight to one, seven to two or six to three majorities. So, this already limits the cases subject to change to a low 20 percent, or an average of about 14 cases per term. Yet within these cases decided by a five to four majority, not all have been strictly along ideological lines. Of the average of 14 cases per term decided by a five to four majority, an average of only 10 per term are strictly along ideological lines with Justice Anthony Kennedy included in the conservative majority. Therefore, these 10 cases would not have been impacted by Justice Kavanaugh since Kennedy sided with the conservative block. In order to see Kavanaugh’s greatest possible impact on the court, we must look at five-four cases where Kennedy sided with the liberal block. In the past eight years, there have been 32 cases of this sort. This is roughly 5 percent of all Supreme Court cases since the 2010 term. Even if Kavanaugh is a solid conservative vote — this dismisses evidence that his judicial philosophy is more similar to Kennedy — the Supreme Court will not radically change.

Although the Supreme Court will not radically change with the confirmation of Justice Brett Kavanaugh, this reality is not immune to change. This does not mean that the Supreme Court is isolated from politicization. With each future confirmation the court can bend farther into polarity. It is American citizens’ responsibility to not tolerate this dangerous behavior by politicians. We must hold politicians accountable, ensuring they keep the Supreme Court an apolitical body. It is our responsibility to ensure that the Supreme Court retains its integrity for generations to come.