Polarization and the Judiciary

Abstract

The increased polarization in the United States among the political branches and citizenry affects the selection, work, perception, and relative power of state and federal judges, including justices of the US Supreme Court. Polarization in the United States over the last few decades matters to the American judicial system in at least four ways. First, polarization affects judicial selection, whether the selection method is (sometimes partisan-based) elections or appointment by political actors. In times of greater polarization, governors and presidents who nominate judges, legislators who confirm judges, and voters who vote on judicial candidates are more apt to support or oppose judges on the basis of partisan affiliation or cues. Second, driven in part by selection mechanisms, polarization may be reflected in the decisions that judges make, especially on issues that divide people politically, such as abortion, guns, or affirmative action. The Supreme Court, for example, often divides along party and ideological lines in the most prominent and highly contested cases. Those ideological lines now overlap with party as we enter a period in which all the Court liberals have been appointed by Democratic presidents and all the Court conservatives have been appointed by Republican presidents. Third, increasingly polarized judicial decisions appear to be causing the public to view judges and judicial decision making (at least on the US Supreme Court) through a more partisan lens. Fourth, polarization may affect the separation of powers, by empowering courts against polarized legislative bodies sometimes paralyzed by gridlock. The review concludes by considering how increased polarization may interact with the judiciary and judicial branch going forward and by suggesting areas for future research.

American Religion in the Era of Increasing Polarization

“…Polarization, in contrast, represents a threat to democracy in that it organizes individuals and groups along common lines of conflict. This elevates the stakes in every political contest, increasing the likelihood that partisan elites will try to manipulate judiciaries, permanently handicap the opposition, or change laws to ensure victory (Levitsky & Ziblatt 2018, see also Arbatli & Rosenberg 2020, Hasen 2019, Mayrl & Venny 2021. This could promote a crisis of legitimacy, paving the way for authoritarian populist movements to elevate the "lying demagogue" (Hahl et al 2018).…”

“…I also give greater attention to work that has been, or can be, more generative for furthering sociological theory on these topics. Though attention is given to relevant work by political scientists, this review will only scratch the surface of that discipline's exhaustive work on polarization (see helpful reviews in Fiorina & Abrams 2008, Grzymala-Buss 2012, Hasen 2019, Iyengar et al 2019, Layman et al 2006, Lee 2015, McCarty 2019, Pierson & Schickler 2020 In in the following sections, I first outline research on polarization in the United States, focusing especially on how religious factors have been treated within that literature. I then survey the burgeoning research on cultural transformation processes, (white) Christian nationalism, complex religion, and Americans' attitudes toward science, in order to elucidate the centrality of ethno-religious identities, religious institutions, and religious demography for both further shaping and entrenching the widening divisions.…”

Affective Polarization and Support for the U.S. Supreme Court

“…In addition, decisions on salient cases frequently reflect the left–right split that typifies other branches of government (Bartels 2015; Devins and Baum 2017). While this elite polarization may ultimately filter down to influence the average citizen (Hasen 2019), the masses’ evaluations of the Court seem relatively unfazed by such polarization among elites (Gibson 2007).…”

“…This is not to say, however, that the Supreme Court is entirely free from the consequences of increasing political polarization. As Hasen (2019) notes, there are several ways that ideologically driven elite polarization can influence public attitudes toward the judiciary. For instance, nominations and confirmations are motivated by the desire to appoint more extreme judges (see Devins and Baum 2017; Epstein et al 2006).…”

Politicized Battles: How Vacancies and Partisanship Influence Support for the Supreme Court

“…Despite the stronghold of positivity bias (Gibson and Caldeira, 2009a), we anticipate that the behavior of the elected branches (in particular, Republicans in the Senate) in the years preceding the 2020 vacancy may have altered public attitudes toward the judiciary (see Krewson & Schroedel, 2020; Rogowski & Stone, 2019). Although, historically speaking, ideological and partisan polarization have spared the Supreme Court (Gibson, 2007), and even controversial decisions perceived to aid one political group have not left the Court bereft of support (Gibson, Caldeira and Spence, 2003b), increasing politicization creates pathways to harm the institution’s public support in the long run (e.g., Bartels & Johnston, 2020; Hasen, 2019). For instance, Armaly and Enders (forthcoming) show that affective polarization—or divergent reactions to political in- and out-groups, like parties—is associated with lower levels of diffuse support for the Court, and causally precedes specific support.…”