There is no clear code of conduct in the US that can resist the president appointing a Supreme Court associate justice just before the election. The sudden vacancy gave Trump an unexpected lifeline in his re-election bid, where the election has already become almost a referendum of his handling the Covid-19 crisis, exacerbated by the fact that the president himself has been tested Covid-positive.
Unlike in India, each of the nine Supreme Court justices in the US has lifetime tenure. And unlike India again, when a vacancy occurs, usually due to death of a justice, the US president nominates a new justice who will then be grilled by the Senate Judiciary Committee. If the committee votes to send the nomination to the full senate, all 100 senators will vote to confirm or reject the nominee. And the outgoing senate has a slender majority for the Republicans.
The feud over the appointment of a Supreme Court justice is reminiscent of when, in 2016, Justice Antonin Scalia died in February, and the Republican-dominated senate refused to hold hearings for (Democratic) President Barack Obama’s nominee, Merrick Garland, who was nominated 237 days before the election. Now that Trump has nominated Justice Barrett only 39 days before elections on November 3, Democrats believe that Trump’s efforts to appoint a justice amount to ‘abuse of power’.
A Reuters-Ipsos opinion survey showed that 62% of US adults thought that the vacancy should be filled by the presidential election winner, while 23% disagreed. The rest were unsure.
US Supreme Court justices certainly make landmark decisions that can fundamentally transform the US, US society and its outlook. Before the death of Ginsburg, there were five judges appointed by Republican presidents, and four by Democrat presidents. If Barrett is appointed, it will become 6:3 in favour of the Republicans.
In this context, one must remember the 36-day-long ‘Bush vs Gore’ case of 2000, when the presidential election was settled in court over ‘dimpled chads’. With controversies regarding mail-in voting looming around the corner, there’s every possibility that the 2020 election may finally be decided in a legal battle. And Trump must be hoping that with a 6:3 advantage in the Supreme Court, it will be Advantage Trump. Are many common Americans also assuming the same?
The loyalty of Supreme Court justices to their appointing presidents and corresponding parties are widely and openly discussed in the US. In a 2016 research article in the Journal of Legal Studies (bit.ly/33JEB6i), Lee Epstein and Eric Andrew Posner conducted a statistical analysis of the Supreme Court Justices’ loyalty to the president during 1937-2014. The data set covers 13 presidents — from Franklin D Roosevelt to Obama — and 39 justices who were appointed during this period, with three among them — James F Byrnes, Sonia Sotomayor and Elena Kagan — served only under their appointing presidents (Harry Truman and both Obama respectively).
It has been observed that justices more frequently vote for the government when the president who appointed them is in office, than when subsequent presidents lead the government. Among the overall 29,264 votes, 60.32% were in favour of the president when the president was not the judgeappointing president. The number rises to 66.25% when it is the judgeappointing president — the difference being statistically significant.
This effect exists even when subsequent presidents are of the same party as the justices’ appointments in question. The loyalty effect is much stronger for Democrat presidentappointed justices than for their Republican counterparts. If we look at the votes of individual justices, the vote percentages favouring the appointing president are (statistically) significantly larger than for other presidents in the case of 11out of 36 justices. And, interestingly, Justice Ginsburg is one of them. When the president was not her appointing president, Bill Clinton, she voted 51.78% favouring the president. She voted 64.13% favouring Clinton, her appointing president.
So, is this an inherent weakness of US democracy? The aforementioned Epstein-Posner study also observes that US Supreme Court justices are less likely to vote for the president when the case appears on the front page of The New York Times. Epstein and Posner thought this to be surprising. But really, is it?
The writer is professor of statistics, Indian Statistical Institute (ISI), Kolkata.