The U.S. Supreme Court: Whither Nonpartisanship?

Recent Supreme Court Decisions Prove Judicial Non-partisanship is Not Yet Dead

By Carl J. Schuman – Superior Court judge, Connecticut; Former Assistant United States Attorney

A Judicial No-Brainer: Texas v. Pennsylvania

There is a common conception that justices of the United States Supreme Court merely vote consistently with their perceived political philosophy, rather than for the legally correct outcome, on controversial cases involving immigration, voting rights, abortion, criminal justice, affirmative action, religion, and social change. Last year I wrote in this column of several major cases that defied this conception. This year there were fewer controversial cases of this magnitude and, perhaps as a result, fewer examples of justices jumping the political divide.

But the 2020–21 Supreme Court term was not without its examples of judicial nonpartisanship. Perhaps the most well-known example is Texas v. Pennsylvania. There the Court rejected Texas’ attempt to prevent Pennsylvania and three other states that had seemingly voted for Joe Biden in the presidential election from participating in the Electoral College. The Court dismissed the case with an unsigned one-paragraph decision, the essence of which was the following statement: “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Stated differently, Texas lacked standing to bring the suit. 

Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all appointed by President Donald Trump, joined the majority decision. Doing so helped show that they were not just political hacks appointed to protect President Trump, as some critics had charged. Only Justices Clarence Thomas and Samuel Alito wrote a separate opinion, and that opinion was limited to a largely technical point about the Supreme Court’s original jurisdiction to hear suits between and among states. 

Arguably, the Texas case did not prove that much. Although over 120 Republican members of Congress joined an amicus (or friend of the court) brief in support of Texas, it was fairly easy to see, from a judicial viewpoint, that Texas had no interest different from any other state in the outcome of the election in Pennsylvania. Further, the notion that one state could challenge the electoral results in another state by filing a direct suit in the Supreme Court had the potential to wreak havoc in future presidential elections. Rejecting Texas’ suit was essentially a judicial no-brainer and revealed very little about judicial nonpartisanship.

No Harm, No Foul: California v. Texas

A similar but somewhat closer case was California v. Texas, in which Texas (a frequent Supreme Court litigator these days), 17 other states, and two individuals challenged the constitutionality of the remaining portions of the Affordable Care Act (ACA). In 2017, Congress amended the ACA to reduce the penalty to zero for failure to comply with the minimal essential coverage provision, commonly referred to as the individual mandate. Texas claimed that the entire ACA was unconstitutional because the Court, in the 2012 case of National Federation of Independent Business v. Sebelius, had upheld the ACA and the individual mandate as a tax provision, and now there was no tax. 

In an opinion authored by Justice Stephen Breyer, a seven-member majority dismissed the suit, once again on the ground of standing. The Court held that any legal injury that Texas and the other plaintiffs had suffered from the costs of compliance with the ACA was not traceable to the individual mandate, which was now essentially unenforceable. A broad coalition of the two other Democratic appointees, Justices Sonia Sotomayor and Elena Kagan, and four Republican appointees — Chief Justice John Roberts and Justices Thomas, Kavanaugh, and Barrett — joined the Breyer opinion. Justice Alito, joined by Justice Gorsuch, wrote a stinging dissent: “Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two. In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”

While California v. Texas was perhaps a closer call than Texas v. Pennsylvania, the California case also does not represent a stern test of whether the justices will defeat political expectations and decide cases independently. Ultimately, California was another easy case. It is not difficult to see, regardless of political affiliation, that Texas and the other plaintiff states suffered no injury from an unenforceable tax of zero percent. The decision relied on the rule of no harm, no foul. One would expect justices of all political affiliations to decide this sort of straightforward case jointly. Although there was dissent, much of the disagreement stemmed from the pure novelty of the situation, in which the question was what to do with a tax originally used to justify the Act that Congress later repealed. 

Voting Rights: A Test of Nonpartisanship

A true test of the Court’s alignments came in Brnovich v. Democratic National Committee, involving a challenge to two Arizona voting restrictions under the federal Voting Rights Act (the Act). One provision prohibited early or absentee ballot collection or “harvesting” by anyone other than an election official, family member, or caregiver. The second restriction required election officials to reject any state or federal ballot placed in the wrong voting district. The main issue was whether these provisions discriminated against minorities in violation of the Act. 

The Court split 6–3 in favor of upholding the two challenged provisions. Justice Alito authored the majority opinion, joined by all five other Republican-appointed justices. The majority concluded that Arizona law generally makes it easy to vote, that these provisions involved only the usual burdens of voting, that there was no evidence of racially discriminatory motives in enacting these laws, and that they had only a small disparate impact along racial lines. All three Democratic-appointed justices dissented. In a long opinion authored by Justice Kagan, the dissenters interpreted the Act to justify only voting restrictions that represented the least restrictive and discriminatory means of achieving the state’s objectives and that the Arizona restrictions failed that test. Thus, in the controversial and difficult area of voting rights, the Court divided sharply along party lines.

Court Blocs and Challenges to Judicial Nonpartisanship

There were approximately sixty other full opinions this term. Some of them addressed controversial issues such as freedom of speech outside of the high school campus, class action lawsuits, and life sentences for juveniles. This article cannot analyze them all, but what appears to be taking place on the Court is the formation of three different blocs in cases in which there are some political overtones. There is the Democratic or progressive bloc, consisting of Justices Breyer, Kagan, and Sotomayor, with Justice Breyer showing the most flexibility, particularly in business cases. A second bloc of Justices Thomas and Alito, and sometimes Justice Gorsuch, is solidly conservative. Then there is a third bloc of the Chief Justice, Justices Kavanaugh, Barrett, and occasionally Gorsuch, that can form coalitions with the other two. Indeed, Justice Kavanaugh was in the majority of divided decisions (any case in which there was at least one dissent) more than any other Justice. As stated by Adam Liptak, the New York Times Supreme Court reporter, “there is a clump in the middle of the court.” 

But this year was not a full test for judicial independence. The composition of the current Court is still relatively new, and there were not that many controversial cases. The next term will be different. Two marquee cases loom on the Court’s docket. First, a Mississippi case, Dobbs v. Jackson Women’s Health Organization, involving a near-total ban on abortion after 15 weeks, will give the Court the opportunity to address the continuing vitality of Roe v. Wade. Second, the Court will take up a Second Amendment case, New York State Rifle & Pistol Association v. Corlett, challenging the constitutionality of New York’s restriction on carrying concealed handguns in public. There are other controversial cases on the docket involving affirmative action in college admissions and public funding for religious education.

In evaluating these cases, we should not expect judges to form coalitions for the sake of bipartisanship or to sacrifice principles for the sake of finding a consensus. Judges are not legislators. On the other hand, we should expect judges to vote strictly on the merits of the issue and not vote based on their political affiliation or political philosophy. Occasionally, then, judges will differ from their political parties. Judges should be nonpartisan rather than partisan or even bipartisan. This term we saw some examples of this sort of judicial independence and nonpartisanship on the Supreme Court. Next year will provide a bigger test. 

Carl J. Schuman

Superior Court Judge, Connecticut; Former Assistant United States Attorney

Carl Schuman has served as a Superior Court judge in Connecticut since 1998. He is a former Assistant United States Attorney and currently is on the adjunct faculty of Quinnipiac University School of Law. He is a regular contributor to Divided We Fall.  His views do not necessarily reflect the views of the Connecticut Judicial Branch.