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August 07, 2022

Can our courts avoid politicization in a polarized America?

Judges and academic historians gathered at the American Bar Association Annual Meeting on Aug. 5 examined the recent drop in Americans’ confidence in U.S. courts – and what’s needed to remedy the problem.

Scott Bales, moderator for “Can Courts Avoid Politicization in a Polarized America?” and a former chief justice of the Arizona Supreme Court, shared various opinion polls that indicate that the public’s perception of the U.S. Supreme Court is at “record lows,” with younger people and women giving the lowest ratings.

Panelists attribute much of the drop to the high court’s recent decisions that align along political party lines.

Taking a historical perspective, Brian T. Fitzpatrick, a Vanderbilt Law School professor and author of “The Conservative Case for Class Actions,” said that judges have long been involved in political campaigns, pointing out that “Richard Nixon made it a big issue for the Republican Party when the Supreme Court kind of veered to the left.”

And, “FDR made [the high court] a big issue when he was president,” he said.

“Politicians have used impeachment to try to punish judges that they didn’t agree with – so I see it’s inevitable that judges are going to be treated to some extent as political footballs,” Fitzpatrick went on to say.

Fitzpatrick said he does not think there’s anything “necessarily negative” about politicizing the courts: “Judges have a lot of discretion,” he explained. “Their decisions have public policy consequences; the public elect and pay attention to judges for that reason.”

Still, Fitzpatrick said it is a “valid question” to ask whether the legitimacy of the court is being threatened right now.

Gregg Costa, judge of U.S. Court of Appeals for the 5th Circuit, agreed that courts being a political issue isn’t “really all that new.”

What he does think is different is that the “division in the court” is so “cleanly aligned along partisan lines.”

He said it is a “new and troubling trend” when judges vote and are expected to vote according to the political party’s viewpoints of those who appointed them.

Bernice Donald, retired judge of the U.S. Court of Appeals for the 6th Circuit, called it dangerous when “people feel like there are alliances being drawn so people can predict outcomes even before the court hears a case.”

Once judges are appointed, Donald said that they should be able to “shed” some of their viewpoints “at the door.”

“We have justices who were members of the Klan, who once they went on that court, actually looked at the law and did progressive kinds of things – they didn’t stay rooted in that past,” she said. “I suppose it's intransigents that people see and say it’s problematic.”

Donald identified what she believes is necessary to address the drop in confidence in our court system.

“We need the court to hold the middle and if people feel like that’s not happening, you will continue to see a decline” in justice system confidence, she said.

Marin Levy, professor at Duke Law School in Durham, North Carolina agreed with Donald “100%” that it’s the lack of a middle ground in the justice system, such as today’s Supreme Court, that is “really concerning right now.”

Levy explained that previous justices like Sandra Day O’Connor and Anthony Kennedy would vote against the “ideology” of the president who appointed them. “I think there was something really important about that for the country.”

Not knowing how the court’s vote would turn out “was really important for all of us,” she said.

Reflecting on the current divisive political environment, Donald wondered whether Americans today have a “shared definition of the rule of law.”

Looking at the immediate future, panelists were bearish on whether public perceptions will shift.

The judiciary has experienced a big drop in court confidence in the past – and quickly rebounded, said Levy, citing the period around Bush v. Gore. But, this time, things are different.

Levy said that in the past, the Supreme Court seemed to have greater sensitivity to public perceptions of their decisions.  

“I think that is not happening right now. I think we’re headed into another hot-button term, and I’m worried we’re going to see this continue,” she said.

“Can Courts Avoid Politicization in a Polarized America?” was sponsored by the Litigation Section, and co-sponsored by Judicial Division, Tort Trial & Insurance Practice Section, and Young Lawyers Division.