Chapter 14: The Supreme Court — Nominations, Ideology, and the Nine Most Powerful Unelected Officials in America

Opening Scene: A Monday in October

On the first Monday in October each year, the Supreme Court of the United States convenes for a new term. Nine justices walk through the velvet curtains behind the bench at 10 a.m., the marshal cries "Oyez! Oyez! Oyez!", and a building completed in 1935 — a marble temple a block east of the Capitol, designed by Cass Gilbert to look more permanent than the country it presides over — begins another year of doing the most consequential interpretive work in American government.

In the term that opened in October 2024, the docket included a major case on the FDA's approval of mifepristone, a case on whether emergency rooms in states with strict abortion laws must perform stabilizing abortions under federal law, a case on whether the Trump-era ban on bump stocks was a lawful agency rule, and the question — eventually decided in Trump v. United States — of whether a former president has criminal immunity for official acts.

Each of those cases would be decided by nine people. The youngest, Justice Ketanji Brown Jackson, was 54. The oldest, Justice Clarence Thomas, was 76. None had been elected to anything. None could be removed except by impeachment, which has never happened to a sitting justice (Samuel Chase was impeached in 1804 and acquitted; no one else has come close). Their decisions, on questions ranging from religious liberty to administrative law to the structural Constitution, would bind every state, every lower court, every federal agency, and the President of the United States.

This chapter is about what that institution is, how it works, how the people who staff it get there, and what they have done with the power.

A note on framing. The Supreme Court has, in the 2020s, moved in a specific direction. It has issued decisions that the conservative legal movement has worked toward for decades and that progressives view as a series of doctrinal earthquakes. This chapter states that direction as institutional fact — the cases were decided, the doctrines changed, the Court is now organized around six justices appointed by Republican presidents and three appointed by Democratic presidents — and presents the strongest version of each side's arguments about whether the recent moves are good law or bad. It does not adjudicate.

14.1 The Court as Institution

Structure: Nine Justices, but the Number Has Varied

The Constitution does not specify the number of Supreme Court justices. Article III, Section 1 simply says: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The size of the Court is set by federal statute, not by the Constitution.

That fact matters. It is the legal foundation of every "court packing" proposal in American history, including FDR's in 1937 and Democratic proposals in 2020-21.

The historical record:

• 1789 — The Judiciary Act of 1789 set the Court at six justices (one Chief, five associates).
• 1801 — Reduced to five (the Federalists, on their way out, were trying to deny Jefferson a Supreme Court appointment).
• 1802 — Restored to six (the Jeffersonians, on their way in, reversed it).
• 1807 — Increased to seven (a new circuit was added; the Court grew with it).
• 1837 — Increased to nine.
• 1863 — Increased to ten (during the Civil War, to give Lincoln a working majority).
• 1866 — Reduced to seven (the Reconstruction Congress was trying to deny Andrew Johnson appointments).
• 1869 — The Judiciary Act of 1869 fixed the Court at nine. It has remained at nine for 156 years.

Nine is not magic. It is custom, reinforced by the political failure of FDR's 1937 court-packing plan, which shaped the consensus that further changes to Court size would be partisan power grabs and should not be normalized. That consensus is now under strain. We will return to it in Section 14.10.

The Chief Justice — First Among Equals

The Chief Justice of the United States is not the boss of the other eight justices. They cannot direct the Chief's vote any more than the Chief can direct theirs. But the Chief has specific institutional powers that matter:

1. Presiding at oral argument and conference. The Chief opens argument, recognizes counsel, and runs the post-argument conference where the justices vote.
2. Opinion-assignment power, when in the majority. When the Chief Justice is in the majority on a case, the Chief decides which justice writes the opinion of the Court. When the Chief is in dissent, the senior justice in the majority decides. This power matters more than it sounds. A Chief who wants to narrow a ruling can assign the opinion to a moderate; a Chief who wants to expand a ruling can assign to an enthusiast. In NFIB v. Sebelius (2012, the Affordable Care Act case), Chief Justice Roberts assigned the opinion to himself and authored a ruling that surprised both liberals (who feared the ACA would fall) and conservatives (who thought their five-vote majority would strike it).
3. Administrative leadership of the federal judiciary. The Chief presides over the Judicial Conference of the United States, which sets policy for the federal courts. The Chief delivers the year-end report on the federal judiciary. The Chief's voice on judicial administration carries weight.
4. Ceremonial role. The Chief Justice administers the presidential oath of office and presides over presidential impeachment trials in the Senate. (The Chief presided over the Andrew Johnson, Bill Clinton, and the first Donald Trump impeachment trials. The second Trump impeachment trial was presided over by Senator Patrick Leahy as President pro tempore, because Trump had already left office and the constitutional question of jurisdiction was contested.)

John Roberts has been Chief Justice since 2005. Before him, William Rehnquist (1986-2005), Warren Burger (1969-1986), Earl Warren (1953-1969), and so on back to John Marshall (1801-1835). There have been only seventeen Chief Justices in the entire history of the country.

The Associate Justices, as of Early 2026

The Court in 2026 has nine sitting justices. The list, in order of seniority:

Six justices were appointed by Republican presidents. Three by Democratic presidents. This 6-3 split is a matter of institutional fact. It is also a matter of historical contingency — three of the six Republican-appointed justices were confirmed during the Trump administration, in part because of decisions made about the Garland nomination in 2016 and the Barrett nomination in 2020. We will discuss those decisions in Section 14.6 and in Case Study 2.

A note on the confirmation votes. Of the nine sitting justices, only two — Roberts and Sotomayor — were confirmed with margins above 60. Three of the last five confirmations (Kavanaugh, Barrett, Jackson) were decided by margins of fewer than seven votes. This is a historically unusual pattern. From 1789 to 1968, the median Supreme Court confirmation was unanimous or by voice vote. Antonin Scalia was confirmed 98-0 in 1986. Anthony Kennedy was confirmed 97-0 in 1988. Ruth Bader Ginsburg was confirmed 96-3 in 1993. The shift to near-totally party-line votes is a phenomenon of the last twenty-five years, with deep roots in the Bork hearings of 1987.

Life Tenure and Why It Matters

Federal judges, including Supreme Court justices, hold their offices "during good Behaviour" — Article III, Section 1. This is interpreted as life tenure, removable only by impeachment.

The framers believed life tenure was essential to judicial independence. A judge who could be removed by the political branches would not feel free to rule against them. A judge whose salary could be cut would feel similar pressure (Article III also bars salary reductions during a judge's tenure). The combination — life tenure plus salary protection — was meant to insulate the judiciary from political retaliation.

It does. It also produces the contemporary phenomenon in which a justice's appointment, made at age 50 or 55, can shape constitutional law for thirty-five or forty years. Clarence Thomas, appointed in 1991, has now served 34 years and counting. Sonia Sotomayor, appointed in 2009, has served 16. The expected tenure of a justice has lengthened substantially as life expectancy has increased and as presidents have prioritized younger nominees to maximize the duration of their judicial legacy. In the 19th century, the average tenure was about 15 years. Since 1970, it has been about 26. That growth has driven much of the contemporary debate over term limits, which we cover in Section 14.10.

14.2 The Cert Process

The vast majority of cases the Supreme Court hears on the merits arrive there through a writ of certiorari — a Latin term meaning, roughly, "to be more fully informed." A petitioner who has lost in a lower court asks the Supreme Court to review the case. The Court accepts only a small fraction of petitions.

The Numbers

In a typical recent term, the Supreme Court receives roughly 7,000 to 8,000 petitions for certiorari. It grants merits review in about 60 to 80 of them. That is a grant rate of roughly 1 percent.

The merits docket has shrunk substantially over time. The Court issued about 150-160 signed merits opinions per term in the early 1980s. By the early 2000s, the number was around 80. In recent terms, it has been in the 60-65 range. The reasons are debated: the Court's workload may be heavier per case (the merits opinions have grown longer), the lower-court system may be more efficient at consensus, and the justices may simply be more selective. Whatever the cause, the modern Court hears far fewer cases than the Court of a generation ago.

The Rule of Four

Granting cert requires four votes. This is the Rule of Four — an internal Court tradition, not a constitutional or statutory rule. The logic is that a minority of the Court should be able to bring a case to the full Court's attention; otherwise, a majority could effectively veto review of any case it thought it would lose on the merits.

In practice, the Rule of Four means that if four justices in the minority on a contested question want to take a case, they can. The other five may then write the merits opinion against them.

What Earns a Cert Grant

The Supreme Court's own rules (Rule 10) list the considerations that bear on cert. They include:

1. A circuit split. When two or more federal courts of appeals have decided the same legal question differently, federal law means different things in different parts of the country. The Supreme Court is the only court that can resolve the conflict, and resolving it is one of the Court's core institutional functions.
2. A conflict between a court of appeals and the Supreme Court's own decisions. When a lower court appears to have departed from the Court's precedent, cert is more likely.
3. An important federal question. When a case raises a question of federal law of broad national significance, even without a circuit split, cert may be granted.
4. The position of the federal government. When the Solicitor General — the federal government's lawyer at the Supreme Court — recommends cert, it is granted at much higher rates. The SG's office is sometimes called "the tenth justice" because of its outsized influence on the Court's docket.

What does not generally earn cert: a case that is correctly decided below but where the loser thinks the law is wrong. The Supreme Court is not a court of error correction; it is a court of legal supervision. If the lower court applied existing law correctly, the Court will not normally take the case just because the loser is unhappy.

The Cert Pool

Most petitions are screened by the cert pool — a system in which the law clerks of participating justices divide up the petitions and write a single memo for each, recommending grant or denial. The memo circulates to all participating justices, who can read it and decide whether to ask for further review.

Eight of the current nine justices participate in the cert pool. Justice Alito does not; he uses his own clerks to screen all petitions independently. (Justice Stevens also did not participate, until his retirement in 2010. The cert-pool/non-pool distinction has not had obvious doctrinal consequences, but some scholars argue it gives non-pool chambers a different perspective on what cases the Court should take.)

The cert pool has been criticized — including by some justices — for centralizing power in a small group of clerks and producing groupthink in cert decisions. It has also been defended as the only practical way to handle 7,000 petitions a year with limited justice time.

14.3 Oral Argument

Once cert is granted, the case is briefed. The petitioner, the respondent, and amici (friends of the court — interest groups, scholars, governments, advocacy organizations) file briefs. Oral argument follows.

Oral argument is allotted thirty minutes per side, plus a few minutes for the Solicitor General if the United States is participating. (Some cases get one hour per side; rarely, more.) Counsel approaches a podium directly in front of the bench. The justices interrupt freely.

Justices' questioning styles vary substantially:

• Justice Thomas famously asked few questions for nearly a decade. The COVID-era shift to telephone arguments — in which the Chief recognized justices in turn rather than letting them interrupt — produced a notable change: Thomas became one of the more active questioners, and he has continued to be in the hybrid format the Court adopted in 2022.
• Justice Alito asks pointed, often skeptical questions, frequently of the side he opposes. His questions tend to test whether counsel can defend the implications of their position.
• Justice Sotomayor frequently presses on the practical real-world consequences of legal rules — how a decision will affect specific kinds of plaintiffs.
• Justice Kagan is widely regarded by court-watchers as one of the most effective questioners in recent decades; she frequently builds elaborate hypotheticals to test the limits of doctrinal claims.
• Justice Gorsuch focuses on textual questions and tests whether counsel can ground arguments in the text and structure of statutes and the Constitution.
• Justice Barrett has emerged as a careful, methodologically focused questioner, often pressing both sides on the specific legal framework they propose.
• Justice Jackson has been an unusually active questioner from her first term, often probing structural and historical questions in depth.

The empirical question of whether oral argument changes outcomes has been studied. The findings are nuanced: oral argument rarely flips a justice's vote on a case where they have firmly committed views going in, but it can shape the grounds on which a justice rules and the breadth of the ruling. Multiple studies have also found that the side asked more skeptical questions during argument is more likely to lose — though this is correlation, not causation, since the justices may simply be probing the side they have already decided is wrong.

For the public, oral argument is the most accessible window into how the Court works. The Court has, since 2020, made same-day audio of arguments available; transcripts are released the same day; and a small group of court reporters (Adam Liptak at the New York Times, Linda Greenhouse formerly there, Amy Howe at SCOTUSblog, Mark Joseph Stern at Slate, Joan Biskupic at CNN, the team at The Volokh Conspiracy on the right, and others) cover argument intensively for a national audience.

14.4 Conference and Opinion Drafting

After oral argument — usually within a few days — the justices meet in conference. The conference room is locked. No one but the nine justices is present. (No clerks, no recording equipment.) The Chief Justice opens the discussion, summarizing the case and stating his or her view. The other justices speak in order of seniority, each stating their initial vote and reasoning.

That initial vote is not final. The opinion-drafting process can shift votes. The most famous recent example is NFIB v. Sebelius (2012), in which Chief Justice Roberts initially voted with the conservative majority to strike down the individual mandate of the Affordable Care Act, then changed his mind during the drafting process and produced an opinion upholding the mandate as a tax. Reporting by Jan Crawford at CBS News, sourced to internal accounts, described the change in detail. The other conservatives' reaction — described by one source as "frustrated" — was reflected in their unusual joint dissent that did not even name Roberts in its discussion of why the mandate was unconstitutional.

That sort of vote-shift is rare but not unprecedented. The opinion-drafting process is iterative: a draft circulates, justices send back comments and proposed changes, the author can negotiate language to hold a majority. When a majority is fragile, the negotiation can be intense. When a majority is solid, the drafting is more straightforward.

Opinion Assignment

When the Chief Justice is in the majority, he or she assigns the opinion. When the Chief is in dissent, the senior justice in the majority assigns. Assignment patterns matter:

• The Chief can keep important opinions for himself (Roberts wrote NFIB in 2012, Shelby County in 2013, the Citizens United dissenting separation in part in 2010, and many others).
• The Chief can give opinions to specific justices to shape the doctrine. Assigning to a moderate produces a narrower ruling; assigning to a more committed colleague produces a broader ruling.
• The senior associate justice — for many years, this was Anthony Kennedy when he was the swing vote in 5-4 cases without the Chief; now it is most often Justice Thomas as the senior conservative and Justice Sotomayor as the senior liberal — has the assignment power when the Chief is in dissent.

The "Swing" Concept

For decades, court-watchers focused on the "swing justice" — the justice in the ideological middle whose vote determined 5-4 outcomes. Sandra Day O'Connor (1981-2006) was the central swing for a generation. Anthony Kennedy (1988-2018) succeeded her in that role; Obergefell (2015), Casey (1992), Lawrence (2003), and Citizens United (2010) all turned on his vote. After Kennedy's retirement, Roberts became the most frequent swing on hot-button cases, though he is more conservative than Kennedy was.

On the current 6-3 Court, the swing-justice frame is harder to apply. With six Republican-appointed justices and three Democratic-appointed, no single justice's vote is required for a conservative majority. But certain cases have crossed ideological lines:

• Allen v. Milligan (2023), a Voting Rights Act case, was decided 5-4 with Roberts and Kavanaugh joining the three liberals to uphold a Section 2 challenge to Alabama's congressional map.
• Moore v. Harper (2023), the "independent state legislature" case, was decided 6-3 with Roberts writing for the majority that included Kavanaugh, Barrett, Sotomayor, Kagan, and Jackson.
• Bostock v. Clayton County (2020), the Title VII case extending workplace protections to LGBTQ employees, was decided 6-3 with Gorsuch writing for the majority that included Roberts, Sotomayor, Kagan, Breyer, and Ginsburg.

The pattern that has emerged is that Roberts and Kavanaugh are most likely to occasionally cross over on specific kinds of cases (statutory construction, voting rights, separation of powers cases that cut against an aggressive executive). Barrett has occasionally surprised observers (joining the liberals in some shadow-docket dissents). Gorsuch has joined the liberals on textualist statutory readings (Bostock) and on cases involving Native American sovereignty (McGirt v. Oklahoma, 2020). The Court is not a perfectly partisan body; it is also not a body in which ideology rarely matters. The accurate description is that ideology is a strong predictor of votes, with meaningful exceptions on specific kinds of cases.

14.5 The Shadow Docket

The "shadow docket" is a term coined by University of Chicago law professor William Baude in 2015. It refers to the Supreme Court's emergency docket — the orders, stays, injunctions, and summary rulings that the Court issues outside the normal merits process.

What It Is

The merits docket — the cases the Court grants cert on, briefs, hears at oral argument, and decides with full signed opinions — is the visible Supreme Court. The shadow docket is everything else: emergency stays of lower-court rulings, applications for injunctions pending appeal, summary reversals, denials of cert with public dissents, and orders that change the law without the trappings of a fully briefed and argued case.

Historically, the shadow docket was a quiet corner of the Court's work. Most shadow-docket orders were procedural: granting a stay of execution while a death-row appeal proceeded, denying an emergency application that lacked merit. They rarely changed substantive law; they rarely had the institutional character of a merits ruling.

This has changed in the last decade. The shadow docket now produces a steady stream of consequential rulings.

The Recent Pattern

A non-exhaustive list of high-profile shadow-docket rulings since 2020:

• COVID-era religious-exercise cases (2020-2021). The Court repeatedly issued shadow-docket rulings enjoining state and local public-health orders that limited religious gatherings during the pandemic. South Bay United Pentecostal Church v. Newsom (2020 and 2021) and Roman Catholic Diocese of Brooklyn v. Cuomo (2020) shifted free-exercise doctrine substantially via shadow-docket orders.
• Texas SB8 (2021). When Texas enacted its restrictive abortion law that delegated enforcement to private civil litigants (designed to evade pre-enforcement federal review), the Court declined to enjoin the law on the shadow docket in Whole Woman's Health v. Jackson (2021). The 5-4 ruling, with Roberts joining the liberals in dissent, allowed the law to take effect months before the Court would address abortion on the merits in Dobbs.
• Biden administration vaccine mandates (2022). The Court issued shadow-docket rulings on the OSHA workplace mandate (struck down) and the CMS healthcare-worker mandate (upheld). The OSHA ruling effectively foreshadowed the major-questions doctrine that would be formalized later that year in West Virginia v. EPA.
• Mifepristone (2023-2024). Multiple shadow-docket rulings preserved access to the abortion drug while the FDA v. Alliance for Hippocratic Medicine litigation worked its way to the Court. The Court ultimately ruled on standing grounds in 2024.
• Immigration enforcement (2021-2024). Multiple rulings on Title 42, "Remain in Mexico," and other border policies have been resolved on the shadow docket.

The Institutional Critique

The most thorough institutional critique of the shadow docket has come from Stephen Vladeck of the University of Texas Law School (now at Georgetown), whose 2023 book The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Generate Distrust makes the argument in detail. Vladeck's case has several components:

1. Volume and significance. The number of consequential shadow-docket rulings has risen sharply since 2017. They are no longer routine procedural matters; they are substantive interventions.
2. Process. Shadow-docket rulings happen without full briefing, often without oral argument, often without signed opinions, and often without explanation of the legal reasoning. A doctrine can effectively be made or remade without the Court engaging the question in the way the merits process is designed to ensure.
3. Predictability. Litigants and lower courts cannot easily predict what the law is when shadow-docket rulings depart from the merits doctrine without explanation.
4. Legitimacy. The institutional legitimacy of the Court rests in part on the visible reasoning of its rulings. A docket that produces consequential rulings without published reasoning erodes that legitimacy.

Vladeck is a center-left scholar, but his critique is methodological, not partisan. He has argued the same about shadow-docket rulings issued in directions he agrees with on the merits.

The Defense of the Shadow Docket

The defense, articulated by some justices in concurrences and by scholars including Will Baude (who coined the term and wrote the foundational article on it), runs roughly:

1. The emergency docket is a legitimate institutional function. Some legal questions require quick resolution. A statute about to take effect, an execution scheduled for the morning, an election about to be held — these cannot wait for the eighteen-month merits process. The Court has always had an emergency docket.
2. The increase in volume tracks the increase in lower-court emergency applications. As litigants have learned to seek nationwide injunctions from sympathetic district courts, more emergency applications reach the Supreme Court. The Court is responding to inputs, not initiating the surge.
3. Some shadow-docket rulings do produce written reasoning. The COVID religious-exercise cases included substantial concurrences. The Texas SB8 ruling produced separate opinions. The critique that shadow-docket rulings are unreasoned is overstated.
4. The alternative is worse. If the Court declines to act on emergency applications, lower-court rulings — sometimes single-judge rulings — set the law for the country pending merits review. This is also a problem.

The honest reader's takeaway: the shadow docket is a real institutional development, with both legitimate uses and genuine costs. The increase in volume and consequence is empirically documented; how to interpret it is contested. It is one of the live debates about the modern Court, and reasonable people across the spectrum disagree.

14.6 The Modern Nomination Wars

For most of American history, Supreme Court confirmations were not contentious. From 1789 to 1968, more than half of confirmations were unanimous or by voice vote. The Senate occasionally rejected a nominee — Robert Bork was the eleventh — but even rejection was unusual, and contested confirmations rarely turned on questions of judicial ideology.

That has changed. The transformation can be traced through specific episodes.

Bork (1987)

Ronald Reagan nominated Robert Bork, a federal appeals judge with a long record of conservative legal scholarship, in July 1987. Bork's nomination triggered an unprecedented public campaign against him, led by Senate Democrats (Senator Edward Kennedy delivered a speech on the Senate floor characterizing the prospective Bork Court in stark terms) and a coalition of liberal advocacy organizations. Bork was rejected 42-58.

The Bork hearings were a turning point in two ways. First, they introduced a model of confirmation politics in which a nominee's judicial philosophy — not just professional qualifications — was the center of the contest. Second, they introduced organized public mobilization and advertising as part of the confirmation process. The verb "to bork" entered the political lexicon to describe the systematic campaign against a nominee.

Conservative legal advocates have argued for thirty-five years that the Bork hearings were the original sin that broke the confirmation process. Liberal advocates have argued that Bork's record was extraordinary and that the opposition was substantive, not stylistic. Both have a point. Bork's writings on the First Amendment, executive power, and antitrust were notably aggressive, and his role in the Saturday Night Massacre during Watergate (he carried out Nixon's order to fire Special Prosecutor Archibald Cox after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than do so) gave opponents a sharp argument. The Bork model also did establish a confirmation politics in which nominees would be heavily scrutinized for their substantive judicial philosophy.

Thomas-Hill (1991)

Clarence Thomas, nominated by George H.W. Bush to replace Thurgood Marshall, faced a confirmation hearing that became extraordinarily contentious when law professor Anita Hill testified that Thomas had sexually harassed her when she worked for him at the EEOC. Thomas categorically denied the allegations and famously called the proceedings a "high-tech lynching for uppity Blacks." He was confirmed 52-48.

The Thomas hearings further intensified the public-spectacle character of confirmations. They also exposed the Senate's procedures for handling allegations against nominees as inadequate. The institutional damage took years to absorb.

Garland (2016)

In February 2016, Justice Antonin Scalia died unexpectedly. President Obama nominated Merrick Garland, the chief judge of the D.C. Circuit, to fill the vacancy. Garland was widely regarded as a moderate consensus candidate; he had been confirmed to the D.C. Circuit by a 76-23 vote in 1997. Senate Republicans had previously suggested he would be confirmable.

But Senate Majority Leader Mitch McConnell announced that the Senate would not consider any nominee until after the November 2016 election, on the principle that "the American people should have a voice in the selection of their next Supreme Court Justice." McConnell's stated rule was that vacancies in a presidential election year should be filled by the president elected that November, not the outgoing president.

The Senate held no hearings and took no vote on Garland. The vacancy remained open for 293 days, the longest such gap in the history of the modern Court. After Donald Trump's victory in November 2016, the seat was filled by Neil Gorsuch in 2017.

The decision to hold the seat open was, in McConnell's view, an exercise of the Senate's constitutional power to advise and consent. Senate Republicans had the votes to refuse to act, and the Constitution provides no remedy for a Senate that refuses to schedule a vote. The decision was, in critics' view, a constitutional hardball maneuver — a refusal to engage in the ordinary cooperative process between the branches that the framers anticipated.

Gorsuch and the Nuclear Option (2017)

When Neil Gorsuch was nominated in January 2017, Senate Democrats — many still aggrieved over Garland — mounted a filibuster. Senate Republicans, lacking the 60 votes needed to invoke cloture under the existing rules, deployed the "nuclear option" — a procedural maneuver, requiring only a simple majority, that eliminated the filibuster for Supreme Court nominations.

The nuclear option had been deployed once before: in 2013, by Senate Democrats under Majority Leader Harry Reid, to eliminate the filibuster for executive-branch and lower-court judicial nominations (excluding the Supreme Court). Republicans denounced the 2013 move and warned Democrats they would regret it. Democrats argued at the time that Republican obstruction of Obama's lower-court nominees had become so pervasive that the Senate could no longer function under the old rules.

In 2017, Republicans extended the 2013 precedent to Supreme Court nominations. The institutional consequence was that henceforth, a simple majority of the Senate could confirm a Supreme Court justice. The 60-vote threshold that had functioned for decades as a check against extreme nominees was gone.

Gorsuch was confirmed 54-45.

Kavanaugh (2018)

Brett Kavanaugh, nominated to replace Anthony Kennedy, faced a confirmation hearing that became extraordinarily contentious when Christine Blasey Ford testified that Kavanaugh had sexually assaulted her in high school. Kavanaugh categorically denied the allegations. Both Ford and Kavanaugh testified before the Judiciary Committee in September 2018 in nationally televised hearings. The FBI conducted a supplemental background investigation. Kavanaugh was confirmed 50-48.

The Kavanaugh hearings were the most polarized confirmation in modern history at the time of the vote. They also further inflamed the question of how the Senate handles credible allegations against nominees and whether the procedures of 1991 had been improved.

Barrett (2020)

In September 2020, Justice Ruth Bader Ginsburg died. President Trump nominated Amy Coney Barrett, a federal appeals judge and former Notre Dame law professor, on September 26 — 38 days before the November 3 election. The Senate confirmed Barrett on October 26, eight days before the election.

The accelerated confirmation drew intense criticism. Senate Republicans, who had refused to consider Garland in 2016 with 293 days remaining before a presidential transition, now confirmed a justice with 8 days to go. McConnell's defense was that the 2016 and 2020 situations were different: in 2016, the Senate majority was held by the opposing party of the president; in 2020, the same party held the Senate and the presidency. The "rule" he had articulated in 2016 was, in his subsequent characterization, more nuanced than the public had heard.

Senate Democrats — who had themselves filibustered the 2003-2005 confirmations during the second Bush administration, and who had deployed the 2013 nuclear option for lower-court nominees — argued the 2020 acceleration was a clear reversal of the McConnell rule. Many called it constitutional hardball.

The honest assessment, which the textbook stands behind, is that the 2016 and 2020 episodes both involved instrumental constitutional reasoning — each side took the position that benefited its substantive policy preferences in the moment, rather than a principled position about election-year vacancies. McConnell's substantive defense in 2020 was not implausible (a Senate of one party confirming a nominee from the same party's president has historical precedent), but it was a different defense from the one offered in 2016. Both parties made themselves vulnerable to the charge of opportunism.

Barrett was confirmed 52-48. Case Study 2 walks through this sequence in detail.

Jackson (2022)

Ketanji Brown Jackson, nominated by President Biden to replace Justice Stephen Breyer, was confirmed in April 2022 by a 53-47 vote. Three Republican senators — Susan Collins, Lisa Murkowski, and Mitt Romney — joined all 50 Democrats. Jackson became the first Black woman appointed to the Supreme Court.

Her confirmation hearings included sharp questioning from Republican senators on her sentencing record in child-pornography cases — questioning that some commentators viewed as legitimate substantive examination and others viewed as motivated by other agendas. The 53-47 final vote continued the pattern of near-totally party-line confirmations.

The Pattern

The confirmation process has changed in specific, documented ways. The shifts have been driven by both parties. The Bork hearings (1987) introduced ideological scrutiny. The 2013 nuclear option for lower-court nominees was driven by Senate Democrats. The Garland blockade (2016) and the Kavanaugh confirmation (2018) and the Barrett confirmation (2020) involved Senate Republican choices that critics called norm violations. The 2017 nuclear option for Supreme Court nominees was deployed by Senate Republicans. Both parties have, over four decades, contributed to the escalation.

The empirical fact is that confirmations are now near-totally party-line and the institutional norms of cross-aisle confirmation have substantially eroded. Whether this is a temporary phase or a permanent change is unknowable. What is certain is that it shapes how presidents nominate, how the Senate votes, and how the public understands the Court.

14.7 The 6-3 Court's Doctrinal Record

A central feature of American politics in the 2020s is the Roberts Court's doctrinal direction. The Court, now organized around a six-justice majority appointed by Republican presidents, has issued a series of decisions that have reshaped substantive law. Stating the cases is not editorializing; it is description. Whether each case was rightly decided is contested.

Dobbs v. Jackson Women's Health (2022)

Dobbs overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), holding that the Constitution does not protect a right to abortion. Justice Alito wrote for a five-justice majority (Thomas, Gorsuch, Kavanaugh, Barrett); Chief Justice Roberts concurred in the judgment but would not have overruled Roe and Casey outright; Justices Breyer, Sotomayor, and Kagan dissented jointly.

Dobbs is the doctrinal earthquake of the 2020s. It returned the abortion question to state legislatures. By 2025, twenty-one states had enacted significant restrictions; others had codified abortion rights. The political consequences have shaped four election cycles and counting. Case Study 1 walks through the case in detail.

New York State Rifle & Pistol Association v. Bruen (2022)

Bruen struck down New York's "may-issue" concealed-carry permitting regime, holding that gun regulations must be assessed against the historical tradition of firearm regulation at the time of the Second Amendment's ratification (1791) or the Fourteenth Amendment's incorporation of it (1868). Justice Thomas wrote for a six-justice majority. The "history and tradition" test announced in Bruen has shaped Second Amendment litigation since.

The methodological move in Bruen — assessing modern regulations against historical analogues — has spread to other doctrinal areas. The Court has subsequently used a history-and-tradition framework in cases involving the First Amendment, due process, and other constitutional provisions.

West Virginia v. EPA (2022)

West Virginia v. EPA formalized the "major-questions doctrine" — the principle that when an agency claims regulatory authority over a question of "vast economic and political significance," the courts will require a clear statement from Congress authorizing that specific regulation. The Court applied the doctrine to strike down the Obama-era Clean Power Plan's approach to power-plant emissions. Chief Justice Roberts wrote for a six-justice majority.

The major-questions doctrine has been used since to constrain agency rulemaking on a wide range of subjects, including the Biden administration's student-loan forgiveness plan (struck down in 2023), the OSHA vaccine mandate (struck down in 2022), and several other regulatory initiatives.

Students for Fair Admissions v. Harvard / UNC (2023)

SFFA struck down race-conscious admissions at Harvard and the University of North Carolina, holding that the use of race as a factor in college admissions violates the Equal Protection Clause. Chief Justice Roberts wrote for a six-justice majority. Justice Sotomayor dissented; Justice Jackson dissented in the UNC case (she had recused from the Harvard case because she had served on Harvard's Board of Overseers).

SFFA effectively ended the doctrinal regime Grutter v. Bollinger (2003) had established for race-conscious admissions in higher education. Universities have subsequently restructured their admissions processes; the empirical effects on student-body composition are still being studied.

Loper Bright Enterprises v. Raimondo (2024)

Loper Bright overruled Chevron v. Natural Resources Defense Council (1984), which had instructed courts to defer to reasonable agency interpretations of ambiguous statutes. After Loper Bright, courts must independently determine the meaning of statutory text, without deferring to agency expertise on ambiguous provisions. Chief Justice Roberts wrote for a six-justice majority.

The end of Chevron deference is widely regarded as the most consequential change in administrative law in forty years. Its full implications are still being worked out in lower courts.

Trump v. United States (2024)

Trump v. United States held that former presidents have absolute immunity from criminal prosecution for "conclusive and preclusive" official acts within their core constitutional authority, presumptive immunity for other official acts, and no immunity for unofficial acts. Chief Justice Roberts wrote for a six-justice majority. Justices Sotomayor, Kagan, and Jackson dissented vigorously.

The decision substantially affected the federal prosecutions of former President Trump arising from the events surrounding the 2020 election. The doctrinal framework it established for presidential immunity is new in American law; the Court had not previously addressed criminal immunity for former presidents.

Cases That Crossed Ideological Lines

Not every recent decision has split 6-3 along appointment lines. Some that did not:

• Allen v. Milligan (2023) upheld a Section 2 challenge to Alabama's congressional map, with Roberts and Kavanaugh joining Sotomayor, Kagan, and Jackson. The decision rejected a challenge to the existing Voting Rights Act framework and required Alabama to draw a second majority-Black district.
• Moore v. Harper (2023) rejected the "independent state legislature" theory, which had argued that state legislatures' power over federal election administration was free from state-court review. Chief Justice Roberts wrote for a 6-3 majority that included Kavanaugh, Barrett, Sotomayor, Kagan, and Jackson.
• Bostock v. Clayton County (2020), decided before Justice Barrett joined the Court, held that Title VII's prohibition on sex discrimination in employment covers discrimination based on sexual orientation and gender identity. Justice Gorsuch wrote for a 6-3 majority that included Roberts, Sotomayor, Kagan, Breyer, and Ginsburg.

These cases — and others — establish that the 6-3 Court is not monolithic. Methodological commitments sometimes produce cross-cutting majorities. But the dominant pattern across the major doctrinal areas has been a 6-3 conservative direction. Both observations are accurate.

14.8 Methodological Divergence Within the Court

Court-watchers sometimes speak as if the nine justices fall into two camps, six conservative and three liberal. The reality is more interesting. Within each camp, methodological commitments diverge.

Within the Conservative Bloc

• Justice Thomas is the most committed originalist on the Court, with a particular willingness to revisit and overrule precedents he considers wrongly decided. His concurrences sometimes signal further doctrinal moves he would support.
• Justice Alito is methodologically pragmatic — willing to use originalism, history-and-tradition, or other frameworks depending on the case. He is also the most consistently conservative justice in outcomes.
• Chief Justice Roberts has emphasized institutional considerations and incrementalism. He has been more willing than other conservatives to preserve precedents (his concurrence in Dobbs) or to narrow rulings to avoid sweeping changes.
• Justice Gorsuch is a textualist with a strong commitment to following statutory and constitutional text where it leads, even when the result conflicts with conservative substantive preferences (Bostock, McGirt).
• Justice Kavanaugh is methodologically conventional in the conservative tradition but sometimes joins narrow rulings that decline to push doctrine further than necessary. He has occasionally crossed over on shadow-docket rulings.
• Justice Barrett has emerged as a methodologically careful justice, often engaging in detailed parsing of doctrinal frameworks. She has occasionally surprised observers with separate opinions that question majority reasoning even while concurring in outcomes.

These differences matter. The doctrinal direction of the Court depends not just on which side has six votes but on how those six justices reason their way to outcomes — and whether they can hold a majority for sweeping rulings or only for narrower ones.

Within the Liberal Bloc

• Justice Sotomayor has emphasized the practical consequences of legal rules for marginalized groups and has been the most willing of the three liberals to write sharp dissents.
• Justice Kagan has been the most pragmatically engaged with the conservatives' arguments, often writing dissents that try to find common analytical ground while disagreeing with outcomes. Her oral-argument questioning is widely admired across ideological lines.
• Justice Jackson has, in her relatively brief tenure, developed a distinctive voice focused on structural and historical analysis. Her dissents in SFFA and Trump v. United States are extensive analytical documents.

The liberals on this Court are not unified by a single methodology. They share broad commitments to a robust reading of equal protection, individual rights, and administrative-state functioning, but they reason their way there through different paths. Sotomayor leans more pragmatic; Kagan more institutionally engaged; Jackson more historical.

Originalism Has Its Own Internal Debates

Originalism is not a single methodology. Within the originalist movement, there are at least four serious strands:

1. Original intent originalism — the position (now mostly historical) that the Constitution should be interpreted according to what its drafters intended.
2. Original public meaning originalism — the position that the Constitution should be interpreted according to what its language meant to ordinary, reasonable readers at the time of ratification. This is the dominant version on the current Court.
3. Original methods originalism — the position that constitutional interpretation should follow the methods judges and lawyers used at the time of ratification, which would include some attention to evolving standards over time.
4. Inclusive originalism — Jack Balkin's variant, which holds that original public meaning fixes the framework but that the application of original principles to new circumstances can produce living-constitutional outcomes.

Justice Barrett has, in academic writing, drawn careful distinctions among these versions. Justice Thomas has been most willing to follow original meaning to outcomes the modern Court has rejected. The methodological diversity within originalism is one reason the conservative bloc does not always vote together — and one reason the liberal-conservative split is not the only relevant axis on the Court.

14.9 Public Opinion and Legitimacy

For most of American history, the Supreme Court has been the most trusted of the three branches of the federal government. Gallup surveys from the 1970s through the early 2000s typically showed Court approval in the 50-65 range, well above Congress and frequently above the presidency.

That has changed. Gallup data show Court approval at historic lows since 2022:

• 2020: 58% approve
• 2021: 49%
• 2022 (post-Dobbs): 40%
• 2023: 41%
• 2024: 43%
• 2025: 41% (Gallup, June 2025 poll)

The decline is concentrated among Democrats and independents. Among Republicans, Court approval rose after Dobbs and remains elevated.

The partisan gap in Court approval is now larger than it has been in the entire history of the Gallup time series. In 2024, approval among Republicans was approximately 65%; among Democrats, approximately 18%. A 47-point partisan gap on an institution that for most of American history was perceived as broadly neutral is a substantial change.

The Legitimacy Debate

There is a serious academic debate about whether the Court is in a legitimacy crisis.

The case that the Court faces a legitimacy crisis (advanced, in different forms, by scholars including Laurence Tribe, Eric Segall, Mark Tushnet, and many others): The Court's recent doctrinal moves — Dobbs, Bruen, SFFA, Loper Bright, Trump v. United States — were enabled by a series of norm violations in the appointment process (Garland 2016, Barrett 2020). The Court's docket selection has been transparently ideological. The shadow docket has been used to advance conservative outcomes without full deliberation. Public confidence has collapsed. Without legitimacy, the Court cannot sustain its constitutional role; its rulings will be increasingly ignored or contested.

The case that the Court is functioning normally (advanced by scholars including Akhil Amar, Adrian Vermeule, Adam White, and others, with substantial variation in argument): The Court is doing what the Court has always done — interpret the law as best the justices can. Public approval of the Court has waxed and waned for two centuries; the post-Dobbs dip is real but historically not unprecedented (the Court was unpopular among many during the Warren Court era too, from a different ideological direction). The decisions the Court has issued are well-reasoned legal interpretations, even if controversial. Conflating substantive disagreement with a legitimacy crisis is itself a form of partisan attack on the institution.

The textbook does not adjudicate. Both arguments have serious adherents. The empirical observation — that public confidence in the Court has declined and that the partisan gap in confidence has widened — is not contested. The interpretation of that observation is.

14.10 Court Reform Proposals

Discontent with the Court — from various directions — has produced a set of reform proposals. The textbook steel-mans each.

Court Packing (Adding Justices)

The most aggressive reform proposal is to add justices to the Court, thereby changing the ideological balance. The number of justices is set by statute, and Congress could change it.

The case for court packing: The 6-3 Court is the result of a series of irregular events — the Garland blockade, the Barrett rush, the Kavanaugh confirmation under contested circumstances. The Court's current composition does not reflect ordinary democratic processes. Adding justices would restore balance and prevent a multi-decade ideological tilt enabled by procedural irregularities. FDR proposed it in 1937 in response to the Lochner-era Court's strikedowns of New Deal legislation; the proposal failed politically but the Court adjusted ("the switch in time"). Court reform has historical precedent.

The case against court packing: The 1869 statutory size of nine has held for 156 years through enormous political swings. Breaking the convention would invite endless retaliation — every time the presidency and Senate change parties, the new majority would add justices. The Court would become a fully partisan institution, which would destroy what remains of its legitimacy. The 1937 episode is itself a cautionary tale: FDR's proposal failed precisely because Americans across the spectrum, including in his own party, viewed it as a threat to the constitutional order.

A 2021 Biden-appointed Presidential Commission on the Supreme Court studied the proposal, among others, and produced a 288-page report that did not recommend court packing — but did detail the arguments for and against. The proposal currently has the support of some Democratic legislators but is not Democratic Party consensus.

Term Limits

A more frequently endorsed reform is term limits — replacing life tenure with fixed terms, typically 18 years staggered so that each president gets two appointments per four-year term.

The case for term limits: The expected tenure of a Supreme Court justice has lengthened from about 15 years in the 19th century to about 26 years since 1970. Individual justices now shape constitutional law for three or four decades. Vacancies have become essentially random — they happen when justices die or strategically retire — which makes presidential elections feel disproportionately consequential and incentivizes ideological selection of younger nominees. An 18-year staggered term would regularize appointments, depoliticize the timing of vacancies, and align the Court's composition more closely with the political eras of the country.

The term-limits proposal has unusual cross-spectrum support. Roger Cramton (conservative legal scholar), Paul Carrington (Duke), Senator Sheldon Whitehouse (D-RI), Fix the Court (a non-partisan reform organization), and others across the political spectrum have endorsed versions of it. The 2021 Biden Commission devoted substantial attention to it.

The case against term limits: The Constitution specifies that federal judges serve "during good Behaviour." Whether term limits could be imposed by statute, or whether they would require a constitutional amendment, is contested. (Most term-limit proposals envision an 18-year term as Supreme Court justice followed by senior status on a lower court — keeping the "during good Behaviour" requirement nominally satisfied.) Critics also argue that life tenure serves judicial independence and that the imperfect timing of vacancies has not, on balance, produced bad results for two centuries. Term limits would also create predictable presidential-election stakes around Supreme Court appointments — making nominations more, not less, politicized — and the staggering effect would be undermined whenever a justice died or resigned mid-term.

Jurisdiction Stripping

Article III gives Congress substantial power to define the appellate jurisdiction of the Supreme Court. In principle, Congress could strip the Court of jurisdiction over particular kinds of cases.

The case for jurisdiction stripping: When the Court has issued rulings widely regarded as illegitimate (as some on each side say it has at various points in history), Congress could withdraw the Court's jurisdiction over specific subjects. This would be an extreme remedy, but Article III, Section 2 explicitly contemplates it: "the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as the Congress shall make." Some on the left have proposed jurisdiction stripping in response to recent decisions; some on the right have proposed it at various times in response to past Warren and Burger Court decisions.

The case against jurisdiction stripping: Stripping the Court of jurisdiction over politically charged subjects would shift those subjects to lower courts, where rulings could conflict and where the constitutional protection against majority overreach would be substantially weaker. Jurisdiction-stripping bills have been proposed many times over the past century and have rarely passed; the institutional norm against using the power has held. Breaking that norm would likely invite reciprocal use by the other party when it next holds power.

A Code of Ethics

In November 2023, the Supreme Court adopted its first formal Code of Conduct, in response to reporting (especially by ProPublica) about gifts and travel accepted by some justices, particularly Justice Thomas. The Code is non-binding — there is no enforcement mechanism — and it tracks the existing financial-disclosure requirements without adding much beyond them.

The case that the Code is sufficient: Federal judges are constrained by the financial-disclosure requirements of the Ethics in Government Act and by general professional norms. The Code formalizes existing practice. Enforcement against Supreme Court justices would raise serious separation-of-powers concerns: who would enforce it? A statutory enforcement regime against the Court would be challenged on constitutional grounds.

The case that the Code is insufficient: A code without enforcement is largely cosmetic. The reports of unreported gifts, hospitality, and travel raise legitimate questions about the appearance of impropriety. If lower-court judges can be subjected to a binding code with enforcement, Supreme Court justices should be too. The current system relies entirely on individual justices' good faith, which has proven insufficient.

The 2025 congressional debates over Court ethics have continued. Several Democratic-introduced bills would create binding ethics requirements and external review; Republican-introduced bills have generally proposed less aggressive measures. None has become law.

14.11 Why This Chapter Matters for the Rest of the Book

The Supreme Court is downstream of every major theme of this textbook and upstream of every major case study.

It is downstream of the Constitution (Chapter 3), which created it. It is downstream of the federal court system (Chapters 12 and 13), which feeds cases to it. It is downstream of the nomination and confirmation process (Chapter 9), which fills its seats. It is downstream of the political parties (Chapters 16-17), which now control nomination patterns. It is downstream of public opinion (Chapter 19), which shapes its legitimacy. It is downstream of money, mobilization, and institutional politics — all the forces this book has been describing.

It is also upstream of substantive doctrine on the questions that define modern American politics. Civil liberties (Chapter 5). Civil rights (Chapter 6). The administrative state (Chapter 11). The presidency's reach (Chapter 10). Election law (Chapter 22 and 36). Money in politics (Chapter 34). Each of these chapters describes a substantive area in which the Court's recent decisions have changed the law — and in which the Court's future decisions will change it again.

You cannot understand modern American government without understanding the Court. You also cannot understand the Court without understanding the political system that produces its members and that consumes its decisions. They are continuous with each other. The chapter that follows treats interest groups (Chapter 15) and their role in shaping every part of the system, including which cases reach the Supreme Court and how they are argued there. The Court is not separate from politics. It never has been. Understanding the politics around it is part of understanding the institution.

Forward references. - Case Study 1 takes Dobbs v. Jackson Women's Health (2022), the doctrinal earthquake of the 2020s. - Case Study 2 takes the Garland-Gorsuch-Barrett sequence (2016-2020), the institutional shift in confirmation politics. - Chapter 15 takes interest groups and their role in litigation strategy. - Chapter 22 takes election administration, including the Bush v. Gore lineage and the post-2020 election-law cases. - Chapter 38 returns to court reform with the broader institutional reform agenda.