There is talk about politicians not wanting Obama to elect a new Supreme Court Justice due to the untimely death of of Antonin Scalia. There is also talk about only having 8 seats filled for so many months in the supreme court as being a major problem based on how the system is supposed to work.

(My question is split up into a few questions but I think they all are really asking for the same but this way puts clearer context around what I'm asking I think)


Why would it matter whether it be a Democrat or a Republican president that appoints a new Justice? Could one or the other appoint a Justice in a way that benefits their party more than the other at this Supreme Court level? How important is party affiliations of justices?

These are judges of the highest court in America and to me I would think a judge should be unbiased and bipartisan in a position like this. Otherwise, there could be corruption at this level.

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    How do you define unbiased and bipartisan? Thats called politics. Commented Feb 18, 2016 at 17:24
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    "untimely" is a bit of a matter of opinion here. An almost 80-year-old who smokes regularly, is overweight, known for eating rich foods might have had his time up. "sudden" is a more apt description. Commented Feb 18, 2016 at 18:01
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    If you want to make your own mind up about whether Supreme Court Justices are "unbiased and bipartisan", then look at the way they actually split on decisions (don't even look at what the decision is and which sides of it are liberal or conservative, just look at how they divide). The grouping is way more consistent than random chance would predict, therefore there is "something" that causes judges to consistently agree with each other. Call it "interpretation" or "bias", but as it turns out, those groups run along with which party nominated them. Commented Feb 19, 2016 at 0:33
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    I talk of tendencies, of course: it's not that every single split decision recently has been a 5-4 split with the conservative wing winning. Just that when they do split, the null hypothesis that the dissenters are independently randomly determined isn't supported by observation. And the judges needn't be partisan in the sense of delivering a verdict because it's the one they think Republicans or Democrats want to have. Rather, the way they are selected allows politicians to choose judges according to whether they tend to deliver verdicts they approve of. Commented Feb 19, 2016 at 0:45

4 Answers 4


The problem is that there are a few very different schools of constitutional interpretation and the role of the supreme court. For example there is textualism, originalism, strict contructionism, founder's intent, balancing, prudentialism, and structuralism. All of these different methods have serious implications on the kinds of laws the court will allow congress to pass.

Furthermore, there is significant concern, on both sides of "judicial activism." This is the idea that justices interpret the law, not based on legal principles and precedent, but rather in order to advance some ideology. For example, many progressives would contend that the supreme court justices who voted against the Affordable Care Act* in National Federation of Independent Business v. Sebelius were just trying to advance their anti-government bias and that clearly the constitution allows almost unlimited regulation under the power of taxation. Likewise, many conservatives and libertarians see the votes in favor the ACA as ideologically motivated, claiming that the individual mandate was explicitly not a tax and that nothing in the constitution explicitly empowers the federal government to force citizens to buy a product or buy from a class of products. These ideas of ideological bias are harder to dismiss when supreme court justices vote in a way that benefits the party that nominated them (as is true for the majority voting both sides of this case). Constitutional law is complicated and justices have somewhat wide discretion to abuse their powers if they can wrap some legal language around their ideologically motivated decision.

Both sides think the other's appointed justices are misinterpreting the constitution and care more about advancing specific policy than rule of law. The stakes are very high, since the supreme court is able to create/find rights and open or close areas of American life to the power of congressional legislation.

* Often referred to as Obama care

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    Another well-known example where various judges were accused of judicial activism was the Obergefell v. Hodges case where the supreme court ruled that same-sex couples have the right to marry.
    – Philipp
    Commented Feb 18, 2016 at 16:21
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    Actually, the SCOTUS ruled that PPACA's individual mandate was NOT authorized by the Commerce Clause. They ruled that the it was a tax (despite its explicit claim to the contrary) and, therefore, authorized under the Taxing and Spending Clause. The Commerce Clause argument was explicitly rejected (on the basis that it's patently absurd.)
    – reirab
    Commented Feb 18, 2016 at 20:49
  • @reirab Good point. Editing.
    – lazarusL
    Commented Feb 18, 2016 at 20:57
  • A good answer except for "and care more about advancing specific policy than rule of law" which is pure speculation and...even for a person like Scalia (who many detested for actually DOING that)...not necessarily accurate as I don't think Scalia sincerely felt he was advancing specific policy.
    – user1530
    Commented Feb 18, 2016 at 22:10
  • @blip, I'm not saying that's the case, I'm saying there's a perception that that's a case. It seems like you agree that that perception exists by saying "who many detested for actually DOING that." Would it help if I found some articles where mainstream politicians on both sides rail against judicial activism?
    – lazarusL
    Commented Feb 18, 2016 at 22:13

I'm as cynical as they come, but I think the other answers are maybe over-playing the politicizing a bit much.

It's true that there are liberal judges and conservative judges. But to say they all are there pushing a very particular agenda is rather unfair. These aren't random politicians off of the street. These are legal experts that have had decades and decades of experience, have built up a reputation worthy of being nominated (and approved) for higher courts and ultimately have had the blessing of our congress to be appointed to the highest legal seat in the land. Whether we agree with their individual politics or not, we have to accept that they got there via honest means and reputation. To imply they are simply pawns of a politicized agenda is unfair.

To answer the questions:

Why would it matter whether it be a Democrat or a Republican president that appoints a new Justice?

A democrat nominee would likely lean liberal, a republican likely would lean conservative.

Could one or the other appoint a Justice in a way that benefits their party more than the other at this Supreme Court level?

Yes. That's what they do. That's politics.

How important is party affiliations of justices?

Officially, not important at all. It's merely a potential indicator of their political leanings.

These are judges of the highest court in America and to me I would think a judge should be unbiased and bipartisan in a position like this. Otherwise, there could be corruption at this level.

Bias isn't the same as corruption. Everyone has political leanings--even judges. It's a democracy. We don't all agree on everything. What Supreme Court justices need to have is a solid understanding of the law--particularly constitutional law. As other answer have stated, there's no one way to interpret the constitution, however. This is where the biases come into play.


The fundamental problem is that factions have discovered that the courts can be used to advance political agenda that they cannot get through the legislature. In other words, appoint politically-oriented judges who will ignore precedent and you can get any desired outcome.

Such politicization of the courts is nothing new. The Dredd Scott case is an extreme early example. However, over the past 50 years, things have escalated. In fact, this politics in place of law has gone on for so long, that the body of Federal case law is so convoluted and conflicting that now there there is precedent for nearly any outcome.

What you are suggesting is the ideal and what should happen. However, the judicial appointment process has become completely corrupted.

That said, there is no problem with only having 8 seats on the Court filed. The Court was originally composed of 6. Actually 8 is probably a better number than 9. That means it takes 5-3 for a majority; not 5-4 like we had.

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    With an odd number of justices, you get 2 results: For the Lower Court or for the folks filing the Appeal. Both results have National scope. With an even number of justices, while majorities may be more "statistically significant", the 3rd possibility of a tie means the Lower Court prevails but each District can continue doing their own thing. The bigger question is whether this 3rd possibility is a net benefit...
    – tjd
    Commented Feb 18, 2016 at 18:11
  • @tjd While you can indeed get different results with a 4-4 split, AFAIK, the result is NOT considered to be nationally binding or to set any precedent. See this recent question. It just leaves the lower court's ruling in place (which very well could be different for different districts in the case of circuit split.)
    – reirab
    Commented Feb 18, 2016 at 20:41
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    Perhaps the most egregious case of blatantly attempting to use the courts to advance a political agenda was when FDR actually tried to expand the number of justices when the existing justices kept striking down his new programs as exceeding the government's Constitutional authority.
    – reirab
    Commented Feb 18, 2016 at 21:04
  • There's a problem with any even-number...there can be ties...which while legally binding, leaves a lot of room for ambiguity in the future.
    – user1530
    Commented Feb 18, 2016 at 22:14
  • Let a better case come around to decide the issue; one that will break a tie. Commented Feb 19, 2016 at 5:50

In the coming years I don't think the American people are going to have any respect for the courts and their decisions. Court justices have become little more than pawns which are exploited by political partisans and special interests.

I fully expect that Senate Democrats are going to use the filibuster as much as possible to stonewall Trump appointees to the courts. Unfilled vacancies on the courts will be a huge problem when one party does not have control of both the Senate and the White House.

When court justices are subjected to confirmation hearings, endless efforts are made to find out how they are likely to vote on specific cases. The issue is not their qualifications but which political groups will benefit from their expected decisions.

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    This answer is attracting downvotes, probably for two reasons: 1.) It is all your opinion. We prefer answers rooted in expert analysis. 2.) It does not effectively answer the question. You can edit your question to include sources and focus on the question that was asked. Commented Dec 15, 2016 at 19:08

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