At Election Law Blog, Rick Hasen has a post entitled, The Republican Supreme Court. Here is an excerpt:
We can expect Republicans to pick reliably very conservative nominees when there is a Republican president and Senate, and Democrats to pick reliably liberal nominees when there is a Democratic president and Senate. (We well may have stalemate, as we had with Merrick Garland, when government is divided.) There will be less need to pick someone who can satisfy a handful of the other side given the loss of the filibuster.
And as it becomes clear that we have “Republican” and “Democratic” Justices, views of the Supreme Court as a more partisan institution will grow.
It will come as no surprise to frequent readers of Legal Theory Blog that I believe this analysis is fundamentally wrong. It makes an assumption about the conceptual structure of judging and the judicial selection process that is simply false. That assumption is that judges vary primarily (or perhaps solely) with respect to ideology. In formal terms, the assumption is that the relevant preferences of Justices, Presidents, and Senators can be represented as a point on a real line from left to right. This is the one-dimensional model of judicial politics. And that model is fundamentally misconceived, because it fails to account for a second dimension of preferences. Judges also have preferences with respect to judicial philosophy that can be represented as a second real line from realist to formalist. The result is a two-dimensional model, with Euclidian preferences.
Neal Gorsuch's position in two-dimensional space is likely substantially to the right of center on the ideological dimension and very near to the formalist end point on the jurisprudential dimensions. We can represent Gorsuch's position as follows, with Sotomayor as a comparison:
Realist
| Sotomayor
|
Left|---------------------------Right
|
| Gorsuch
Formalist
If the Supreme Court comes to be dominated by formalists, we should it expect it to become a non-partisan institution, but this possibility depends on a continued commitment to formalism from political conservatives and libertarians and a transition to formalism from progressives and liberals.
There is another possibility. It may be that the next time Democrats control the presidency and the Senate that they will abandon the rule of law altogether and appoint openly ideological judges. There is no guarantee that this move would not generate a tit-of-tat response. If it does, then the downward spiral of politicization will continue. That would be tragic.
