Study reveals ‘feedback loop’ of political polarization in the U.S. Supreme Court, calls for major reforms

• Senior study author available for interviews after Judge Jackson’s confirmation
• Study examines patterns in the timing of all federal judges’ retirements between 1802-2019
• Results show rapidly increasing polarization and partisan bias in the judiciary since 1975, undermining the courts’ legitimacy that depends on its claim of judges’ impartiality

CHICAGO --- What role do partisan politics play in the U.S. Supreme Court? 

Dr. Eric Reinhart, a political anthropologist, psychoanalyst and resident physician at Northwestern University Feinberg School of Medicine, asked that very question in light of recent widespread belief that the U.S. Supreme Court and federal judiciary has undergone increasing politicization in the past few decades. 

In a recent study, he used a straightforward metric—the timing of federal judges’ retirements, which determines which president will choose their replacement —to reveal what appears to be “a calculated, deliberate political motivation in judicial decision-making,” he said.

“What legal scholarship like ours makes clear is that it would be a delusional mistake to take evidence of bias as a simplistic condemnation of individual judges for failing to be superhuman legal machines free of bias and self-interest,” Reinhart said.“Findings like ours should instead provoke much more difficult debates that focus on systems, such as the institution of the Supreme Court itself and the procedures for judicial nominations in general.”

Reinhart is available to speak to media. Contact Kristin Samuelson at ksamuelson@northwestern.edu to arrange an interview. 

Using data from 1802-2019, Reinhart and his collaborator’s recent study examined whether federal judges’ retirements –– both from the Supreme Court and also the U.S. circuit courts ––corresponded with electoral cycles. 

In prior research, other scholars have analyzed whether judges retired the year before or after an election and concluded that judges’ retirement decisions are not influenced by politics. What makes this study novel and leads to very different conclusions, however, is that it also examined whether the judges retired in the first quarter before or after an election.

The study found:

• Between 1802-1975, relative to the regular distribution of departures from the bench over time, an additional six percent of all judicial exits corresponded with electoral cycles and appear to have been politically motivated. But since 1975, it’s been a different story.
• There has been a significant increase in politically motivated retirements since the 1970s following Roe v. Wade and the rising influence of right-wing Evangelical politics. This has since continued to intensify: 40 of 273 — or 14.7 percent — of federal judicial retirements between 1976-2019 appear to have been deliberately timed to match the political affiliation of the retiring judge with that of the president responsible for nominating their replacement.
• Judges appointed by presidents of both parties engage in this behavior, but Republican-affiliated judges are more likely to deliberately time their retirements according to electoral cycles.
• This has affected thousands of court decisions and millions of Americans, as data show that judges appointed by Republican versus Democrat presidents systematically differ in how they decide cases on gender rights, sentencing lengths and several additional key matters in American law with consequences for racial and gender disparities.