cover image

Illustration by Zelalem Waritu

US Supreme Court: How did we get here?

Eight days before election day, following a bitter partisan battle, Amy Coney Barrett was confirmed to the U.S. Supreme Court. This article retraces the past and the politics that have shaped the Supreme Court as we know it today.

Justice Antonin Scalia passed away on Feb. 13, 2016, nine months before the United States election day.
“The American people should have a voice in the selection of their next Supreme Court justice,” Senate Majority Leader Mitch McConnell notoriously said. “Therefore, this vacancy should not be filled until we have a new president.”
But following the passing of Justice Ruth Bader Ginsburg in late September, the same Senate Republicans who refused to hold proceedings on Merrick Garland, the judge selected by President Barack Obama, have now succeeded in giving Amy Coney Barrett a lifelong appointment on the highest bench in the country.
The bitter partisan battle concluded eight days before election day, tying all three branches of government in a vitriolic mess — but how did we get to this point?
Madison v. Marbury: Political Since the Start
Article III of the U.S. Constitution outlined the creation of a Supreme Court, but left the details up to Congress who defined its role in the Judiciary Act of 1789. 12 years later, in the seminal case Madison v. Marbury (1803), Chief Justice John Marshall established the principle of judicial review — the ability for the Supreme Court to declare legislation unconstitutional, creating a powerful check on Congress.
This often-cited case provides the important legal basis of the Supreme Court we know today, but a dive into the facts of the case reveal striking parallels to the political maneuvers of the past month.
After losing a bitter election, outgoing president John Adams created new courts which allowed him to appoint numerous judges of his own Federalist party; these so-called “midnight judges” were quickly approved by the Senate. To be fully approved, however, the appointees must receive their commissions, but for Marbury and others, those commissions were not delivered prior to the start of the next administration, which incoming Secretary of State James Madison refused to do.
Chief Justice Marshall’s controlling opinion was convoluted — Marbury deserved his courtship, but the Supreme Court should not be hearing this kind of case because the Judiciary Act was unconstitutional, thus creating the principle of judicial review. Despite this partisan context in which the contemporary Supreme Court arose, the myth of an apolitical justice was born.
Politicians in Robes?
In 2018, New York Times staff writer Emily Bazelon argued that we are used to seeing the Court in political terms — a liberal bloc, a conservative bloc and cases that fall comfortably along those lines. The confirmation of Justice Brett Kavanuagh pushed the Court to the right, while a younger and more diverse electorate pushed the country left.
As such, there are two main bodies of thought around the judiciary. Bazelon explored the first; a view that relegates justices to the role of policy maker and perceives rulings in purely political terms. Swing voters, such as Justices Sandra Day O’Connor, Anthony Kennedy and now occasionally Chief Justice John Roberts, allowed people to eschew this perception of the court as reductive, but the prominence of this view has risen again with President Donald Trump appointing three new justices within his four-year term.
Second, however, is a more optimistic belief in judicial restraint; that the role of justices is to interpret and apply the Constitution, and a lifetime appointment supposedly allows them to be free from the whims of the electorate. A lofty goal of the judiciary is to protect minorities from majority rule despite having an intrinsically undemocratic structure itself.
One of these cloaked figures that subverts the liberal-conservative binary is Justice Harry Blackmun, a lifelong Republican appointed by President Richard Nixon, who became an unlikely abortions rights ally because of his committment to the right to privacy and the principle of stare decisis. In Planned Parenthood v. Casey (1993) — another attempt to dismantle a woman’s right to choose — Justice Blackmun once again shows his legal integrity but also makes a stunningly accurate prediction about the Court’s relation to abortion: “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today.”
And he was correct.
Abortion has become a shockingly powerful rallying call, especially for conservative religious groups who have transformed abortion into a single issue voting matter over the past half century since the landmark case Roe v. Wade.
Judicial Activism
Roe v. Wade’s unintended consequence was sparking decades worth of activism fighting against abortion rights, and while the 1973 case has not yet been overturned, in some states abortion clinics have been nearly regulated out of existence. This activism was not only sustained on the grassroots level, but by the creation of legal organizations which propelled conservative lawyers to powerful judicial appointments across the country.
Most notably, the Federalist Society was born in 1982 with a small group of students at elite law schools who felt a dissonance between the rise of Reaganite politics and the left-leaning curriculum they covered. The Federalist Society preaches limited government, federalism and the rule of law. Alongside one of the earliest mentors Scalia, the organization embraces originalism — the idea that the Constitution should be interpreted in terms of the actual text of the document and as close as possible to the intentions of the Founding Fathers.
The Federalist Society has now grown into an influential organizing body, not only forming the ideological base of law students but also creating a powerful network that has directly helped construct judgeship candidate lists for Trump and his allies.
Politicization of the Courts
In fact, Trump has wielded the judiciary as a leverage point with conservative groups and as a campaign promise that he has followed through on with rapid speed.
In 2017, 12 of his appellate judges were confirmed by the Senate, more than any president in their first year in office. As of July, Trump had appointed almost a quarter of all active federal judges.
Republican supporters tend to focus on the impressive credentials of these picks while Democrats focus on ideological sticking points — often in regards to marriage equality and abortion. Although accelerated, this trend is not new to the Trump administration, but Senate confirmation votes reveal the extent to this polarization.
Conservative Scalia and liberal Ginsburg were confirmed by 98-0 and 96-3 votes, respectively. By 2005, Samuel Alito faced a narrower 58-42 appointment with the most recent Trump picks approved on near party lines.
Though the Supreme Court proceedings make the most national headlines, the importance of the appellate courts cannot be understated given they view thousands of more cases each year.
A prolonged blue slip process in the Senate Judiciary Committee, blockades by McConnell and a lackluster democratic focus led numerous appellate court positions to remain unfilled by the Obama administration, quickly filled by the succeeding White House.
Moving Forward
In 1937, President Franklin D. Roosevelt famously attempted to [pack the courts](( and increase the number of justices up to 15. But in today’s context, similar legislative reforms of the Supreme Court are once again seriously under consideration.
Barrett’s confirmation could launch a concerning tit for tat with Democrats in Congress, especially if they manage to win back the Senate on Nov. 3. A handful of prominent progressive leaders have already called to expand the Supreme Court from beyond the current nine members. Other potential reforms include expanding the lower courts, establishing term limits for justices or removing the ability for justices to select the cases they hear in the process of granting certiorari.
Whether inherently political from the start or the consequence of the past few decades of increased polarization, the current status of the Supreme Court is on shaky grounds. 230 years of history, politics and public opinion have shaped the judiciary into where it is today, a system where Barrett’s confirmation rushed through a divided Congress amist intense national scrutiny — what’s up next for SCOTUS?
gazelle logo