Abstract

http://ssrn.com/abstract=2432111
 


 



Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court


Neal Devins


William & Mary Law School

Lawrence Baum


Ohio State University (OSU) - Department of Political Science

March 16, 2016

William & Mary Law School Research Paper No. 09-276

Abstract:     
Starting in 2010 the Supreme Court has divided into two partisan ideological blocs; all the Court’s Democratic appointees are liberal and all its Republicans are conservative. Correspondingly, since 1990 there has been a dramatic increase in the ideological gap between Democratic and Republican appointees. In this article we make use of original empirical research to establish that this partisan division is unprecedented in the Court’s history, and we undertake a systematic analysis of how it came about. We show that it is linked to growing partisan polarization among political elites, polarization that has shaped the Court in multiple ways. Presidents — for the first time ever — make ideology the dominant factor in appointing Justices. The Senate confirmation process too pays increasing attention to ideology, including party line votes that block the consideration of judicial nominees. Equally significant, the sorting of elites into the two parties on the basis of ideology has greatly reduced the numbers of conservative Democrats and liberal Republicans who might be selected as Justices.

Finally, political elites that tended to lean in a moderate-to-liberal direction during the 1960s through 1980s have become polarized along ideological lines. As we show through original research on the voting patterns of Justices, Justices who once might have been drawn toward moderation are increasingly reinforced in their liberal or conservative orientations. One key reason is that the rise of the conservative legal network has worked against the “drift” of Republican appointees toward more liberal positions that was common a few decades ago. This analysis indicates that the current partisan division on the Court is not a temporary phenomenon; rather, it is likely to continue as long as the current partisan polarization continues.

Number of Pages in PDF File: 67

Keywords: Supreme Court, law & psychology, law & politics, law & society


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Date posted: May 3, 2014 ; Last revised: March 16, 2016

Suggested Citation

Devins, Neal and Baum, Lawrence, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court (March 16, 2016). William & Mary Law School Research Paper No. 09-276. Available at SSRN: http://ssrn.com/abstract=2432111 or http://dx.doi.org/10.2139/ssrn.2432111

Contact Information

Neal Devins (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3845 (Phone)
757-221-3261 (Fax)
Lawrence Baum
Ohio State University (OSU) - Department of Political Science
Blankenship Hall-2010
901 Woody Hayes Drive
Columbus, OH OH 43210
United States
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