If the Supreme Court is nakedly political, can it be just?

Lee Epstein, the Ethan A.H. Shepley Distinguished University Professor


The court has recently entered a new era of partisan division. If you look at close cases — 5 to 4 or 5 to 3 — going back to the 1950s to illustrate this division, you will see that the percentage of votes cast in the liberal direction by justices who were appointed by Democratic presidents has skyrocketed. And the same trajectory applies on the other side: The percentage of votes cast in the conservative direction by justices who were appointed by Republican presidents has also shot up.

In the past 10 years justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution.

Read the full piece in the New York Times.

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