Nominations to the Supreme Court: Much Ado About Nothing or a Polarized Partisan Court?

Hemming, Andrew ORCID: https://orcid.org/0000-0002-1314-0737 (2022) Nominations to the Supreme Court: Much Ado About Nothing or a Polarized Partisan Court? Elon Law Review, 14 (1). pp. 37-85. ISSN 2154-0063


Abstract

The purpose of this article is to examine the recent history of nominations to the Supreme Court with a view to establishing whether the Supreme Court has become a polarized partisan court basing its decisions on values and ideology. For the difficult cases, do Supreme Court Justices reason in reverse by deciding their position in advance and then seeking a logical reasoned argument to justify their pre-determined outcome? Is Posner correct in suggesting that Supreme Court Justices, by virtue of being at the top of the judicial tree, are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication, with the Supreme Court being best understood as a political court? Alternatively, as Green argues, does Posner overlook the strong influence of historical legalism in constraining Supreme Court Justices from acting like politicians? In view of the political battleground that the filling of Supreme Court vacancies has become, there is a clear expectation, at least on behalf of Presidents and Senators, that their nominated and carefully screened candidate will decide important cases in a manner consistent with their own political values and ideology. Legal commentators regularly refer to the relative number of conservative and liberal Justices on the Supreme Court, with the frequent identification of a single Justice as being a ‘swing’ voter. Such expectations and commentary reinforce the popular notion that Justices on the Supreme Court are legal proxies for the political party which nominated them and do not decide important cases with an open mind. This article considers the extent to which this popular notion of a partisan Supreme Court is accurate.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Files associated with this item cannot be displayed due to copyright restrictions.
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Faculty/School / Institute/Centre: Current - Faculty of Business, Education, Law and Arts - School of Law and Justice (1 Jul 2013 -)
Date Deposited: 18 Apr 2022 23:23
Last Modified: 18 Apr 2022 23:23
Uncontrolled Keywords: United States Supreme Court; Nominations; Partisan; Political
Fields of Research (2020): 48 LAW AND LEGAL STUDIES > 4803 International and comparative law > 480302 Comparative law
Socio-Economic Objectives (2020): 23 LAW, POLITICS AND COMMUNITY SERVICES > 2399 Other law, politics and community services > 239999 Other law, politics and community services not elsewhere classified
URI: http://eprints.usq.edu.au/id/eprint/47556

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