By Jennifer Nicoll Victor, Ph.D., George Mason University
Supreme Court justices are appointed by the president and subject to approval by the Senate. A justice must receive a majority vote in the Senate to be confirmed. Usually, the Senate does not rigorously investigate the appointee. Historically, most Supreme Court nominees have been relatively noncontroversial and have been approved by wide majorities in the Senate.
Partisan Polarization and the Supreme Court
The tradition of how a president appoints a Supreme Court justice has begun to break down in the last 10 years or so. The primary reason this norm has changed is due to partisan polarization in the US Senate.
If one thinks of senators as having a single position on a one-dimensional, left–right ideological scale, where left is liberal and right is conservative, then in the US Senate, the median Democratic senator has moved to the left, and the median Republican senator has moved ideologically to the right, such that the gap between the two parties has been growing.
Importantly, Republicans have moved more than Democrats have. In other words, when political scientists look at the votes and positions that senators take, it is obvious that Republicans in the Senate have moved more to the right than Democrats have to the left.
This polarization of the Senate has had a profound effect on the politics of Supreme Court appointments. For example, before 2017, Supreme Court nominees were subject to a filibuster in the Senate. This meant that a super-majority of senators (60), would need to support the motion to take a vote on a nominee’s appointment.
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Changing Rules to Eliminate Filibusters
Republicans in the Senate changed the rules to eliminate filibusters on Supreme Court nominees, and President Donald Trump’s nominee, Neil Gorsuch, was approved on a 54–45 vote. The vote to confirm another nominee to the Court was even closer. In 2018, President Trump’s pick for the Supreme Court, Brett Kavanaugh, was confirmed on a 50–48 vote.
Republicans changed this rule in 2017 as part of a retributive action against Democrats, who also changed the rules in 2013, allowing federal court nominees to be approved without being subject to filibuster. Both parties have played a hand in changing the norms of the Senate in ways that exacerbate the partisan acrimony that has gripped the chamber, forcing it into a fair amount of dysfunction.
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The President’s Influence on the Supreme Court
The president has an obvious direct influence on the Court in virtue of the ability to nominate justices. Members of the Supreme Court tend to be highly respected and accomplished jurists. From one point of view, the justices of the Supreme Court are members of the country’s smallest and most exclusive club, where qualifications for membership are almost unbelievably high.
The application of justice is fabled to be blind, meaning that judges and justices are supposed to apply the rule of law without regard to any biases that might influence their decision-making. But justices are people, too, and all people have biases and personal experiences that color their worldviews.
Although partisanship is not an explicit component of the way justices identify themselves or decide cases, most justices have ideological leanings that are apparent in their legal writings and former cases they have decided. Presidents will often attempt to learn about these traits among a small set of highly qualified jurists and select ones that are most similar to their own.
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Influence of Congress and Organized Interests
Another major influence on the Supreme Court comes from Congress. This occurs most directly through the Senate confirmation process. And while that process has become more politically charged in the last decade or so, the act of confirming a judicial nominee is one of the more captivating things to observe. Congress also has the authority to define court jurisdictions, though this does not happen very often.
Organized interests comprise a third influence on the Court. Sometimes, when a case is being appealed to the Supreme Court, or when a case is already on the Court’s docket, organized groups attempt to sway the Court’s decision to hear a case or affect how the Court might decide a particular case.
These groups have a formal means of communicating their positions to the Court through a process known as amicus curiae, which is Latin for ‘friend of the court’. Quite literally, an ally of a party in a particular case can opt to submit an amicus brief that presents arguments, evidence, or reasoning in support of, or against, a particular claim.
Influence of Public Opinion on the Court
A final influence on the Court is public opinion. While, theoretically, the Court makes its decisions in a way that is blind to biases and outside influence, in practice people can observe instances in which the Court has appeared to decide cases that were meant to influence public opinion and policy, or where the decisions themselves appeared to be influenced by public opinion.
Scholars have closely examined the relationship between the Supreme Court and public opinion and found the two to be correlated; however, scholars are not fully in agreement about why the correlation exists and if there is a causal relationship in which direction it might go.
Common Questions about How Supreme Court Justices Are Appointed
There are four major categories of influences on Supreme Court justices. One is public opinion that has a direct correlation with the Court. The others include the president, Congress, and organized interest groups.
The president has a direct influence on the Supreme Court in virtue of the ability to nominate justices. Presidents often attempt to select jurists with ideological leanings that are most similar to their own.
Organized interest groups express their positions to Supreme Court justices through a procedure called amicus curiae, or ‘friend of the court’, which means an attorney can submit a brief to support a particular claim.
