The Impact of Divided Government on the Supreme Court Appointment Process: An Assessment of Judicial Extremism, 1946‐2009

Abstract

The desirability of complete judicial independence has been debated in several recent works. At issue is whether democratic theory is compatible with policy making by the unelected U.S. Supreme Court justices, particularly as their service becomes further removed from the time when elected officials played a role in their appointment. We examine the relationship between appointing presidents and Supreme Court justices. Relying on ideal points that place all actors in the same scale, our regression models show that a justice will drift from the ideology of an appointing president with each additional term served, even after controlling for ideological shifts in political climate. The beginning of the eleventh term is when ideological drift becomes significant. The connection between justices and democratically elected officials begins to wane after this point in a justice's tenure-a finding that is likely to be germane for proponents of term limits for Supreme Court justices.

A Case for Supreme Court Term Limits? The Changing Ideological Relationship between Appointing Presidents and Supreme Court Justices

“…Using a similar variable, Johnson and Roberts () note that the further a president's distance to the filibuster pivot, the greater the number of public support statements that the president makes concerning a nominee to the Supreme Court—perhaps in an effort to evoke support for the candidate in the face of a hostile Senate. Although some works (Richardson and Scheb ; Sharma and Scheb ) use a dichotomous variable to demonstrate that divided government may constrain a president's ability to appoint an ideologically extreme justice, we feel that the filibuster pivot variable offers a more precise measure of interbranch ideological discord. Beyond that concern, this variable also accounts for situations where the appointing president's party has a majority in terms of seats controlled, but lacks ideological congruity; thus different conditions of unified government are also distinguished.…”

“…We build upon that idea by noting a strong theoretical justification for congruity between the appointing president's ideology and the voting behavior of a recently appointed Supreme Court justice. The highly political nature of the appointment process makes this likely, especially under conditions of unified government (Richardson and Scheb ; Sharma and Scheb ). Furthermore, Murphy (, 50) suggests that once on the Court, a newly appointed justice might require “an occasional helping hand—a word of advice can be helpful.” Perhaps this is because, as Justice Clarence Thomas once declared, “in your first five years [on the Court], you wonder how you got there” (Wrightsman , 99).…”