Jimmy Hoover for the NLJ.
I offered some thoughts in this one:
Many commentators say that a similar dynamic is responsible for today’s partisan rancor in light of the Supreme Court’s now solidly 6-3 supermajority of Republican appointees.
“The Supreme Court for the first time in modern history has all the conservatives appointed by one party and all the liberals appointed by the other,” said Rick Hasen of UCLA Law, a prominent Supreme Court scholar.
In the past, Hasen noted, several Republican appointees such as Justices John Paul Stevens and David Souter frequently voted with Democratic-appointed liberal justices in politically or socially fraught cases. No longer.
“It’s much easier to see and to describe the court as acting in partisan ways: ‘the Republican majority on the Supreme Court, the Democratic dissenters on the Supreme Court,’” Hasen said. “Language like that is accurate in a way that it wasn’t before.”
What’s more, this expanded conservative majority has not shied from wielding its power, often at the expense of the legislative and executive branches, and often without any of the court’s liberal members signing on, Hasen said. This past term’s blockbuster 6-3 decision establishing broad criminal immunity for former President Donald Trump and effectively delaying his trial over the 2020 election is a prime example.
“That was huge and I was wrong,” said Hasen.
“I was expecting the chief justice to be looking for some common ground and to be looking for a way for the court to speak, if not with one voice, at least with some bipartisan agreement, and that didn’t happen at all,” Hasen added. “Something has changed with John Roberts.”
Although Hasen faults the court for its failure to bridge partisan divide, he lays part of the blame at politicians such as Schumer who have only fanned the flames of division with their rhetoric.
“I do think that because of this partisan split, you often get hyperbole or worse coming from political actors,” Hasen said.
“It’s not as though every criticism of the court is well considered,” he added. “I thought that language was intemperate and not helpful.”