Daniel Hemel Discusses SCOTUS Polarization with the American Economic Association

Supreme Polarization

University of Chicago law professor Daniel Hemel discusses whether the nation’s highest court is facing a legitimacy crisis and, if so, what to do about it.

Democrats may control the White House and Congress, but Republicans have a clear advantage on the nation’s highest court. 

Sixteen of the last 20 appointments to the Supreme Court have been GOP nominees, including six of nine sitting justices.

Critics say that this has caused an imbalance of power that threatens the court’s legitimacy. University of Chicago law professor Daniel Hemel questions, however, whether some of the reforms being discussed would help.

His paper in the Journal of Economic Perspectives argues that ideological polarization on the Supreme Court is nothing new. And while it’s true that Republicans have dominated recent appointments, proposals like 18-year term limits would do little to address partisan fighting. In fact, term limits could make matters even worse.

Hemel spoke with the AEA’s Chris Fleisher about the history of ideological division on the Supreme Court, proposals for creating a more balanced court, and what changes he believes hold the most promise for addressing those concerns.

The highlights of that conversation, edited for length and clarity, are below and the full-length interview can be heard using the podcast player.


Fleisher: Many Americans view the Supreme Court as a very polarized institution right now. Recent polls have shown that public confidence in the court is down. What does the evidence say about that?

Hemel: I'm not really sure if public confidence in the Supreme Court is down. Gallop since 1974 has been asking people about their confidence in the Supreme Court and asking whether they have a great deal of confidence, quite a lot of confidence, at least some confidence, or none at all. If you look at people answering "a great deal of confidence,” the trend level is pretty flat from 1974 to today. 

As for the polarization of the court, we do see something different from what went on in the past. In the past, we had polarized Supreme Courts but they weren't necessarily polarized along party lines. If you look back at the 1930s, Justice James McReynolds and Justice Harlan Stone were very far apart. But McReynolds was a Democratic appointee and a conservative and Stone was a Republican appointee and a liberal. We see that until 2010. In 2010, one of the most liberal members of the court was John Paul Stevens, who was a Republican appointee. Over the course of the past decade, we've seen a new phenomenon in Supreme Court history, where the conservatives all happen to have been appointed by Republicans and the liberals all happen to have been appointed by the Democrats. So, in that sense, we used to have polarization. Now we have polarization along party lines. We have party sorting. 

It's not immediately clear to me that's a bad thing. To some extent it provides a check on the justices because everyone understands who the conservatives on the court are and who the liberals are on the court. They can see by matching justices to the party of the appointing president. And the justices don't want to be perceived as purely partisan. I think the party sorting on the court has some checking function. 

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