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Why the U.S. Supreme Court Is So Divided


An American flag flies outside the Supreme Court in Washington, Sept. 3, 2018.
Why the U.S. Supreme Court Is So Divided
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Lawmakers in the United States have been debating how to deal with an accusation against a nominee for the Supreme Court. The issue has turned into a political battle between the two major parties.

Observers may ask why a Supreme Court candidate shows such a wide division between Democrats and Republicans. President Donald Trump nominated Brett Kavanaugh in July. Kavanaugh, like past nominees to the court, has promised his court decisions will not be based on politics. And yet, in the 20th century, the nine-member court has followed a trend of partisan division.​

From 1969 to 1986, an average of 17 percent of cases were decided by a 5-4 majority. In the following years, that average rose to 20 percent, then 22 percent.

The early years of Supreme Court decisions were decided very differently. From 1801 to 1940, a one-person majority decided only 2 percent of cases.

In other words, Supreme Court justices have been less and less able to agree on decisions. At the same time, one group of justices often shares an opinion, and disagrees with the other justice.

For example, in the last term, which ended in June, the same group of five justices decided 13 cases; the same group of four justices dissented in those cases. The five in the majority are considered conservative. The four in the minority are considered liberal.

FILE - U.S. Supreme Court nominee Brett Kavanaugh listens during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, September 4, 2018.
FILE - U.S. Supreme Court nominee Brett Kavanaugh listens during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, September 4, 2018.

This apparent split is one reason Brett Kavanaugh’s nomination has become such a political battle. Kavanaugh is thought to be a conservative thinker, and many lawmakers believe he will ensure the court’s rulings continue to support conservative ideas.

The Divided States?

This partisan divide on the court is part of a larger picture of political division in the U.S. – at least among politicians and the media. Reporter Alan Greenblatt wrote about the issue in Congressional Quarterly magazine in 2004. In the early 2000s, he said, voters were nearly evenly divided between generally conservative and generally liberal groups. So, to win votes, Greenblatt says, politicians became more extreme in their views.

A 2014 report in the New Republic magazine supports Greenblatt’s idea. It noted that in the second half of the 20th century, lawmakers considered to have views in the middle dropped from about 45 percent to 10 percent.

The decrease in moderate politicians was part of a political plan, Greenblatt says. He claims that in the mid-1990s, lawmakers in the Republican Party sought to make personal attacks on Democrats, stop moderate views, and punish officials who cooperated with the opposing party. The plan worked, Greenblatt says. In many cases, more extreme Republicans gained power. And Democrats began using the same methods, too.

Since that time, partisan divides have become even wider. The split is aided by media reports that promote highly partisan views; a growing industry of workers paid to act in support of laws that favor certain causes or businesses; activist campaign donors; and the practice of redefining an electoral area so similar voters are all together.

But most Americans believe they are in the middle

But in fact, Americans today are not as politically divided as the politicians and media, say researchers from the Pew Research Center. A recent survey found that more than half of Americans consider themselves politically moderate. Even those who identify with a political party believe they are slightly more moderate than the party as a whole.

However, Pew researchers found that Americans see people in the opposing party as having extreme views. In other words, voters see other voters as very partisan, even if each person believes he or she is moderate.]

So what does this have to do with the Supreme Court?

As political culture in the U.S. has become more partisan, many Americans have come to see Supreme Court justices as political, too. When division on the court began to increase in the 1940s, Americans’ belief that justices would be politically independent began to decrease.

FILE - U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee during his confirmation hearings on Capitol Hill, September 16, 1987.
FILE - U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee during his confirmation hearings on Capitol Hill, September 16, 1987.

In 1987, the idea that Supreme Court justices could be considered in connection with their political beliefs exploded with the hearings of Robert Bork. Democrats blocked his nomination, partly because they objected to his views on civil rights and abortion.

Bork warned that treating justices as political candidates would reduce the public’s trust in the court. But by the beginning of the 21st century, a number of voters wanted justices to decide cases with certain beliefs in mind.

The Gallup research company questioned Americans about that idea in 2005 and 2018. Half of them said that they believed lawmakers could reject a qualified nominee if they disagreed with him or her about hotly disputed issues, such as gun control or abortion.

FILE - A pro-choice supporter is confronted by anti-abortion demonstrators in front of the U.S. Supreme Court in Washington January 22, 2007.
FILE - A pro-choice supporter is confronted by anti-abortion demonstrators in front of the U.S. Supreme Court in Washington January 22, 2007.

An opinion writer in the San Francisco Chronicle wrote earlier this year about why the Supreme Court had become such a political battleground. Jonah Goldberg noted that the power of the court has risen sharply in the U.S. government. He says that, in the 20th century, partisans on the left began to use the court to push forward laws and policies that should be made by the president, lawmakers or states.

Partisans on the right answered, he said, by making Supreme Court nominations a campaign issue. In 2016, then-candidate Donald Trump promised voters he would nominate conservative-minded justices to the Supreme Court. That promise, Goldberg says, helped Trump become president.

I’m Caty Weaver.

And I’m Ashley Thompson.

Kelly Jean Kelly wrote this story for Learning English. Caty Weaver was the editor.

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Words in This Story

trend -n. a general direction of change : a way of behaving, proceeding, etc., that is developing and becoming more common​

partisan -adj. strongly supporting one leader, group, or cause over another​

certain -adj. used to refer to something or someone that is not named specifically​

practice -n. something that is done often or regularly​

abortion -n. a medical procedure used to end a pregnancy and cause the death of the fetus​

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