A Nonpartisan Cure for a Partisan Supreme Court

In today's highly politicized confirmation process, there is still a way to keep the Supreme Court nonpartisan.

Mathieu Landretti, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

Checks & Balances is a newsletter of the Society for the Rule of Law Institute

By Gary J. Simson

At their confirmation hearings, Supreme Court nominees often emphasize the importance of judges doing their job in a nonpartisan way. Nominee John Roberts famously likened judges to “umpires” – those who “don’t make the rules” but only “apply them” – and he pledged that as Chief Justice he would “remember that it’s my job to call balls and strikes and not to pitch or bat.” Similarly, nominee Clarence Thomas insisted that judges must “shed the baggage of ideology” and “be stripped down like a runner.”

Of course, no judges, no matter how vigilant, can ensure that their decisions are completely uninfluenced by the personal values and policy preferences that shape who they are. The difficulty with Roberts’s and Thomas’s statements, however, is more far-reaching: The statements can’t be squared with the partisan way in which the Supreme Court majority that includes Roberts and Thomas has been doing its job.

The Supreme Court is dominated by a majority of justices of a similar political bent who, consciously or unconsciously, regularly deliberate about and decide politically controversial cases in a distinctly partisan way. That majority firmly coalesced in 2018 when Justice Kennedy, deservedly known as a “swing justice,” retired and President Trump named Brett Kavanaugh to succeed him. It then grew to six in 2020 when Justice Ginsburg, long an anchor of the Court’s liberal wing, passed away and President Trump appointed Amy Coney Barrett to her seat.

The partisan majority is driven by a very Trump-like political agenda – one that’s radically conservative and essentially reactionary. Time and again, their decisions in politically high-stakes cases roll back progress made by women, racial minorities, and other historically disadvantaged groups; and the reasons they offer in their opinions to justify those decisions almost invariably are seriously flawed.

In the past year alone, an abundance of emergency (“shadow”) docket and regular docket decisions exemplify the Court’s partisanship. Probably nothing confirms it as strongly and succinctly, however, as the four decisions between 2022 and 2024 that expressly or implicitly overruled decades-old landmark decisions on abortion, church-state separation, affirmative action, and courts’ obligation to respect agency decisions. The majority opinions in those cases not only achieved results high on the wish list of Trump Republicans but did so in a way that strongly signaled that stare decisis – the longstanding judicial doctrine calling for a high level of respect for precedent – had ceased to serve as a meaningful restraint on the high court.

A partisan Supreme Court is irreconcilable with our constitutional separation of powers and fundamentally undemocratic. As unelected officials, the justices have no authority to substitute their policy preferences for those of the people’s elected representatives, but that’s exactly what they are doing when they decide questions of statutory interpretation and constitutionality in accordance with their personal political agendas. Such an illegitimate exercise of judicial authority is destabilizing to the entire system. It may provoke the other branches to defy, or retaliate against, the Court, and it undermines the public confidence in the Court that’s ultimately the Court’s principal protection against defiance or retaliation by the other branches. As Justice Frankfurter memorably explained, “the confidence of the people is the ultimate reliance of the Court as an institution.”

Sitting on the Court as part of its 6-3 partisan majority are two justices, Gorsuch and Barrett, who owe their seats to Senate Majority Leader McConnell’s and President Trump’s extreme politicization of the appointment process. When Justice Scalia died in February 2016, McConnell falsely insisted that Senate tradition precluded moving forward with President Obama’s nomination of Merrick Garland because only eleven months remained in Obama’s term. With Senate Republicans putting up no resistance, Garland’s nomination lay dormant and ultimately expired in January 2017. Shortly after taking office later that month, Trump nominated Neil Gorsuch – a federal appellate judge carefully vetted for dependability to cast Trump-pleasing votes. It only remained for McConnell to keep his docile Senate majority in line as he pushed through a 54-45 confirmation vote.

When Justice Ginsburg died in September 2020 with only about four months remaining in Trump’s term, McConnell promptly announced that there was plenty of time to confirm a new justice. Using his best double-talk, he shamelessly denied the undeniable: that moving forward with a nomination at that late date was utterly inconsistent not only with Senate tradition but also with the reasons he had offered for refusing to allow the Garland nomination to proceed. Trump quickly pounced on the opportunity by nominating Amy Coney Barrett – another federal appellate judge who had passed with flying colors the ideological litmus tests that Trump’s judicial advisors regularly applied. With only one member of the Republican Senate majority voting “no,” Barrett eked out confirmation by a 52-48 vote.

When Joe Biden was elected president in 2020 with Democratic majorities in the Senate and House, Democrats in Congress were eager to undo the partisan advantage on the Court that McConnell and Trump’s extreme politicization of the appointment process had produced. Seeking to fight fire with fire, Democratic leaders urged promptly adding seats to the Court and appointing justices who reliably would vote contrary to the current majority. The Democrats’ Senate majority was so narrow, though, that a bill expanding the Court couldn’t pass unless all Democratic senators were in support. When two made clear that they were not, Court expansion never even came to a vote.

Whether or not Court expansion at that time ultimately would have done more harm than good is difficult to say. Adding four seats to the Court would eliminate the partisan advantage so unconscionably won. It also was apt, however, to trigger a retaliatory expansion by Republicans when they once again held both the presidency and a Senate majority, and additional expansions by both parties might well follow in later years. Meanwhile, the Court could be expected to grow larger and larger, increasingly inefficient, and more and more a reflection of the prevailing political winds.

Rather than trying to neutralize the partisan results of a politicized appointment process, the Democrats would have done well to focus on depoliticizing the process that produced those partisan results. Court expansion threatens to make the process even more political, and although term limits – the other possible Supreme Court reform featured in a report commissioned by President Biden early in his term – is unlikely to make the process any more political, there’s no reason to expect it to make the process any less. A third possibility, however, holds a great deal of potential in this regard: Change the proportion of senators needed to confirm a Supreme Court nominee from a simple majority to two-thirds.

The only reason that Gorsuch and Barrett could be confirmed even though they very foreseeably would decide cases in a partisan, radically conservative, way is that they didn’t need any Democratic votes to win confirmation by a simple majority. If they had needed a two-thirds Senate vote, they wouldn’t have come close. The same goes for Kavanaugh, Trump’s one other Supreme Court nominee.

Because the number of senators from each party almost never is below 40 or above 60, a president making a nomination that requires a two-thirds confirmation vote must take seriously the preferences of senators of the other party even if the president’s party is in the majority. Otherwise, the nomination is doomed to fail. Rather than put forward nominees like Gorsuch, Barrett, and Kavanaugh, Trump would have had to name ones substantially more acceptable to Senate Democrats. That would have meant nominating people whose apparent ideological leanings at the time of nomination were not so amenable to Trump and who appeared to be more qualified to be sitting on the Court in terms of personal characteristics such as objectivity and open-mindedness.

But is it unrealistic to expect a two-thirds vote requirement to fuel compromise in an appointment process that has become so much more contentious in recent years? Throughout the twentieth century, unanimous or near-unanimous confirmation votes were common even for nominees, like Justices Scalia and Ginsburg, much closer ideologically to the senators of one party than the other. In the twenty-first century, party-line voting has become the norm. Wouldn’t adoption of a two-thirds vote requirement simply be a prescription for gridlock, with the president and senators of the other party refusing to compromise across the aisle, Supreme Court vacancies laying unfilled for years, and the Court itself withering away?

After appointment battles in recent years of a ferocity I’d never thought possible, I hesitate to dismiss such fears as completely unfounded. I very much doubt, however, that the American public would simply sit by and watch as the dismal scenario I’ve described played itself out. I believe the president and senators of the other party would share my view and abandon their intransigent behavior before the public punished them for it at the polls.

But even if a two-thirds vote requirement warrants adoption, is it apt to win adoption? Though not spelled out in the Constitution, the existing simple-majority vote requirement has been understood from the start as implicit in the constitutional text. Replacing it with a two-thirds requirement therefore requires a constitutional amendment, which means getting approval by two-thirds of both houses of Congress and three-fourths of the states.

That’s no easy task, particularly in an era like today in which the two major parties agree on very little of importance. An amendment instituting a two-thirds confirmation vote requirement for Supreme Court justices, however, ought to have strong nonpartisan appeal.

As a matter of institutional principle, senators of both parties would have good reason to support it as a means of helping ensure that the Senate has an important voice in the appointment process. Presidents have shown that they have ample tools at hand to be able to successfully pressure senators of their party to vote for Supreme Court nominees whom those senators would prefer not to confirm. If only a simple-majority Senate vote is needed to confirm a Supreme Court nominee, and if the president’s party is in the Senate majority, the president can treat the Senate as largely irrelevant to the process.

If, however, a two-thirds Senate vote were required, presidents would virtually never be able to rely simply on their special sway over senators of their own party to get whomever they wish confirmed. Rather, in selecting nominees, they would be obliged to think more broadly and take seriously the preferences of senators of the other party – senators over whom they exercise much less control.

Senators, regardless of party, would also have good reason to support a two-thirds vote amendment because of the protection it would provide for their chances of reelection. An amendment requiring a two-thirds vote to confirm, rather than a simple majority, wouldn’t make senators any less susceptible to presidential pressures to vote for confirmation when they and the president belong to the same party. However, it would force the president to put forward more broadly acceptable nominees, which would substantially reduce the likelihood that senators in the president’s party would end up voting for a nominee who would be likely as a justice to prove a political liability for them.

If the requisite two-thirds of the Senate were to vote for the proposed amendment, the task of securing affirmative votes by two-thirds of the House and three-fourths of the states would remain. Perhaps because the proposed amendment would directly impact only the Senate, and not the House and the states, the House and the states might vote affirmatively for it in the necessary proportions out of a sense of deference to a resolution reached by a bipartisan majority of the institution plainly most affected.

Is a concerted effort to win adoption of a two-thirds confirmation vote amendment ultimately likely to succeed? Maybe not, but the odds are good enough and the need for such an amendment is great enough that the effort is warranted nonetheless.

In light, however, of the uncertainties that the amendment would win adoption and the several years that winning adoption of any amendment typically takes, I also urge initiating now a parallel course of action: Seek adoption by the Senate of a rule that two-thirds of the Senate must vote in favor of a Supreme Court nominee for that vote to be certified and sent to the president, whose signature is needed for the appointment to become final. The Senate could adopt such a rule by a simple-majority vote, and it would remain in place unless and until a majority voted to repeal it.

The urgency of adopting this rule arises from the possibility that one or more justices may retire before a successful amendment process could run its course. With midterm elections coming in November that threaten to eliminate the Republican majority in the Senate, that possibility may become a reality soon. One or more of the six justices in the Court’s partisan majority may decide to retire in the next few months to ensure that President Trump, with the Republicans still in the Senate majority, has a free hand to choose their successors without having to take Democratic senators’ wishes into account. Trump could name much younger and equally radically conservative people to succeed the retirees without worrying that the Democrats could block their confirmation.

Of course, justices who strive to do their jobs in a nonpartisan way might well refuse to time their retirements based on such plainly partisan strategizing. Unfortunately, however, there is little to suggest that the justices in today’s six-justice partisan majority are justices of that sort.

Gary J. Simson is the Macon Chair in Law and Former Dean at Mercer Law School and Professor Emeritus of Law at Cornell Law School, and he serves on the board of directors of Lawyers Defending American Democracy. This essay is adapted from his article, Our Partisan Supreme Court and an Essential First Step Toward Reclaiming What’s Been Lost, 41 Journal of Law & Politics 1-56 (2025).