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Aaron Ross Powell: Welcome to Zooming In, a project of The UnPopulist. I’m Aaron Ross Powell. My guest today is George Mason University law professor and B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, Ilya Somin. Ilya recently wrote an article for The UnPopulist about the state of the Supreme Court—whether it’s become more politicized than it used to be, and why many of the proposals to fix it could be counterproductive, even dangerously so.

A transcript of today’s podcast appears below. It has been edited for flow and clarity.

Aaron Ross Powell: Is the Supreme Court more politicized than it used to be?

Ilya Somin: I think it depends on your definition of politicization. I think it is more politicized in the sense that there's more polarization between Republican-appointed justices and Democratic-appointed ones than there was say 30, 40, 50 years ago. On the other hand, I don't think it's more politicized in the sense that justices’ political views play a bigger role in their decisions than they did in the past. I think there's little evidence to support that. While the justices are not now, nor have they ever been completely free of political bias, I think they are much less biased than other governmental institutions are. That enables them to play a more neutral role than we would have otherwise if we weaken judicial power.

“I think it is more politicized in the sense that there's more polarization between Republican-appointed justices and Democratic-appointed ones than there was say 30, 40, 50 years ago. On the other hand, I don't think it's more politicized in the sense that justices’ political views play a bigger role in their decisions than they did in the past.”

Aaron Ross Powell: One of the things that frustrates me about the way that a lot of people talk about the Supreme Court and its decisions is there's this sense, I think from both sides, but you see it a lot from the left that justices make a decision on what they think the right answer or the best answer or the answer they'd prefer for a given case is based on their partisan political priors. Like, I'm a conservative, therefore I want to restrict immigration. Then when there's a case in front of them about immigration, they just reason backwards from that.

It's like a disingenuous legal argument effectively when in fact, as we both know, these justices usually come in with a coherent and developed jurisprudential perspective and philosophy. They're originalists or textualists or living Constitution people, and they're often fairly upfront about what has political—it is more likely if you are a progressive that you're going to find living constitutional perspectives more persuasive than strict constructionist perspectives, but they're reasoning from that articulated theory.

When you talk about them becoming more politicized in the first way—the politics of the justices are diverging, are we seeing a growing divergence in the underlying judicial philosophies? The living constitutionalists are becoming more extreme in their living constitutionalism—more hardcore—and the textualists are becoming more textualist in theirs?

Ilya Somin: I don't think that's necessarily what's happening. I think it's simply that what we have is a greater divergence within the Supreme Court on both political ideology and also some issues of legal methodology as well. That translates into a bigger gap between the predicted votes of a Republican appointee versus a Democratic appointee than would have existed 40 or 50 years ago. Such a divergence is not completely unprecedented in American history, but it is different from what you saw in the immediate post-World War II era where, say, from the late 1940s until perhaps the 1970s or the '80s, differences between Democratic and Republican appointees were much more modest.

It's not because the justices of that era were somehow less biased or more removed from politics. It's that within the legal elite of that era, with the possible exception of southern segregationists, there was much less disagreement over big major issues, either of interpretation or of political ideology than there is now, and also I think over time, as there's been more polarization between the political parties, there's also been more in the way of divergent litmus tests on—while both Democratic and Republican presidents, they want to appoint people who have strong professional credentials, they also have a series of litmus tests on how they want the people to vote on different issues.

When they vet potential nominees, particularly for the Supreme Court, they will do what they can to make sure that they get somebody who's likely to vote the way they want on these issues. Not because that person is deliberately being political but in most cases because due to their jurisprudential and other views, they will tend to come out in that direction even if their motive is not to please the president that appointed them or the political party.

Aaron Ross Powell: Can you talk about this in the context of the nomination and confirmation process? Your essay at The UnPopulist begins by looking at the changes there. Can you tell us how things used to look, how they look now?

Ilya Somin: Sure. Nominations and confirmations have looked different ways, different periods of American history. If you look at that period, say from the 1940s to at least the late 1960s, and even later, most nominations with rare exceptions weren't particularly controversial. Many senators from the opposing party, usually a clear majority, would still vote for the most nominees. Often the questioning of nominees was pretty perfunctory. I mentioned the example of Byron White who was only questioned for about 40 or 50 minutes, and a lot of that time was spent on questions about his football career because he had been a professional football player before he was a judge.

Obviously, if you look at recent years first, almost every recent nominee in the last 15 years or so, a majority of opposing party senators have voted against the nominee. The last nominee who got a majority of opposing party senators, I think, was Chief Justice Sean Roberts when he was nominated in 2005. Even with him, there was something, I think 22 Democratic senators devoted against him. Secondly, recent confirmation hearings have featured a lot of questioning and debate about controversial legal and political issues.

Obviously, this next factor is less new, but some of them have featured issues of personal scandal like accusations against Kavanaugh, though there have been cases like that in previous history as well. Those kinds of things are more charged even than they would have been 50 or 60 years ago because the fear of Republicans with Kavanaugh was not just a Kavanaugh might be defeated, but the Democrats would somehow create a situation where they could string things out until the election and then maybe the Democrats would control the Senate in its aftermath, then therefore block Republican nominees.

Just as in fairness, the Republicans in 2016 were able to block the Democratic nominee, Merrick Garland, for several months until the election happened. Then they were able to get their own nominee through instead. There has been an escalation of political conflict over nominations and also of senators voting against opposing party nominations, at least in most cases.

Aaron Ross Powell: I want to get to the Merrick Garland move because that's obviously quite significant in the narratives about politicization. Before that, I want to ask if it's the case that politicians are now picking judges who are more removed from what used to be a consensus center than they used to be. They look more distinct from the guys that the other party might be picking if they were in charge.

That's basically a demand-side change. Does that mean that we are getting less qualified nominees than we did before? Before, the selection criteria was, "I wanted to find the best possible justice" and now it is, "I want to find the best possible justice who aligns with my more extreme politics", that's going to narrow the pool of possible nominees.

Ilya Somin: It's an interesting question. A lot depends obviously on what you consider a good qualification for a Supreme Court Justice and there's not a consensus on that. If you believe that what should be a good qualification is technical expertise on legal issues with an extensive background in those kinds of things, I think the nominees in the last 20 or 30 years are actually on average somewhat better than those from earlier eras because in addition to