Can the Supreme Court Be Impartial?

October 31, 2024

Public trust in the Supreme Court is at a near-record low. While trust has declined across all party groups since 2020, perception of the Supreme Court is deeply partisan, making the Court itself yet another issue where American views are highly polarized.

In this episode, our hosts, former Tennessee governors Phil Bredesen and Bill Haslam, and their guests, Stephen Vladeck, a law professor at Georgetown and CNN Supreme Court analyst, and John McGinnis, a law professor at Northwestern, discuss the impact of polarization and declining public trust on the Supreme Court. Is the Supreme Court as partisan as Americans think it is? Are reforms needed to help rebuild trust? 

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“Not partisanship in the usual sense”
Building on the podcast’s season-long focus on polarization, both Vladeck and McGinnis shared their perspectives on how, if at all, the Supreme Court has contributed to partisan polarization.

“I think the court has contributed a bit, but not on purpose,” Vladeck told the governors. “For the first time in American history since 2010, we have a Supreme Court where the ideological orientation of the justices maps perfectly onto the party of the president who appointed them.” This alignment, he noted, has led many Americans to view Court decisions as political, especially in high-profile cases where decisions often split along ideological lines.

McGinnis views the divide differently, as one based more on legal philosophy and interpretation than partisanship.

“The Supreme Court for the first time has a majority of originalist-oriented judges. In other words, they feel the Constitution should be interpreted according to its original meaning,” he said. “And that is, I think, controversial with some members of the Democratic Party. So that is, I think, the source of tension, not partisanship in the usual sense.”

“Where things have gone off the rails”
Neither Vladeck nor McGinnis spoke highly of two often-cited potential reforms – expanding the size of the Supreme Court, and imposing term limits.

Vladeck noted that these proposals reinforce the partisan perception of the Court and miss the true issue at hand.

“The conversation I think we ought to be having about Court reform is one about making the Court more accountable to the other branches, regardless of whether the current majority is Republican appointees, Democratic appointees, Mets fans, Yankees fans,” he said. “That shouldn’t matter if the court is accountable enough. And I think that’s where things have gone off the rails.”

Instead, Vladeck said that he favors reforms that would facilitate more “push and pull” between the branches of government and increase accountability.

What would that look like? “That doesn’t come from more justices, that doesn’t come from term limits, that comes from more congressional engagement in the day-to-day work of the Court and the justices, it comes from Congress actually reasserting some control over the cases,” he explained.

McGinnis shared that expanding the Court “would be just a disaster” from his perspective because it wouldn’t happen just once – every time there was unified government, there would be more justices added to the Court until it ceased to be a court.  

On the question of term limits, he was less certain. “I think it’s clearly unconstitutional as a matter of Constitutional Law,” McGinnis said. “Whether it would be good as a constitutional amendment I think is harder to understand.”

“I hope we don’t find out”
Speaking just weeks ahead of the 2024 presidential election, the governors asked both guests about the possibility that the Supreme Court might need to step in to address election-related challenges.

McGinnis emphasized that recent history should reassure Americans of the Court’s integrity. He pointed to how, in 2020, federal courts—including those with judges appointed by President Trump—uniformly rejected attempts to overturn election results, reinforcing the judiciary’s impartial stance.

“I think actually we can be quite assured that the Court will act in a non-partisan way in disposing of these challenges,” he said. “I’m also heartened by the fact that the Congress reformed the Electoral Count Act that I think is going to make it harder for losers in the election to cause problems in Congress and then by extension in the Court. So, I’m optimistic that we’re not going to see substantial problems, at least from the federal courts.”

While Vladeck agreed 2020 was a “success story” for the Supreme Court, he was less confident that the Court would be able to navigate a situation like it did in 2000 this time around.

“I hope we don’t find out,” he said. “This is a very different public relationship with the Court than existed at the time of Bush v. Gore…What I worry about is that you’ll have justices even acting in the best of faith whose sort of ideological views are going to push them to vote in ways that align with their partisan preferences where it might be hard to find some kind of consensus view.”