Prepared Statement of Senator Chuck Grassley of Iowa
Chairman, Senate Judiciary Committee
The Public Perception of the Supreme Court
Tuesday, April 5, 2016

Mr. President, a significant number of Americans believe the Supreme Court is highly politicized.  Its approval rating has fallen over the years.  Not surprisingly, its approval rating has dropped most drastically in recent years following the President’s appointment of Justices Sotomayor and Kagan.

There are four Justices who vote in a liberal way in effectively every case the public follows.   There are two Justices who stick to the constitutional text and vote in a consistently conservative way.   One Justice votes mostly but not always in a conservative way.  And one Justice votes sometimes with the conservatives and sometimes with the liberals.   

All of the liberals were appointed by Democrats.  The conservatives and the swing Justices were appointed by Republicans.
But in a speech shortly before Justice Scalia’s death, Chief Justice Roberts maintained that the public wrongly thinks the Justices view themselves as Democrats or Republicans.  

Of course, it’s irrelevant to the public how the Justices view themselves.  What’s troubling is that a large segment of the population views the Justices as political.  

It’s appropriate and instructive, then, to ask why the public takes this view, and whether it’s warranted.  

I believe the public’s perception is sometimes warranted.
The Chief Justice ruled out that this perception has anything to do with what the Justices have done. Instead, he attributes it to the Senate’s confirmation process.  As he sees it, senators “frequently ask us questions they know it would be inappropriate for us to answer.  Thankfully, we don’t answer the questions.”
The Chief Justice also stated, “When you have a sharply divided political divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms.  You know if the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some members of the public to think, well, you must be identified in a particular way as a result of that process.”
On the one hand, the Chief Justice identified precisely why it would be bad for the court and the nominee to move forward in the middle of a hotly contested presidential election campaign.  
As I’ve said, it would be all politics, and no Constitution.  That, of course, was the thrust of Chairman Biden’s argument in 1992.  
But in another respect, the Chief Justice has it exactly backwards.  The confirmation process doesn’t make the Justices appear political.  The confirmation process has gotten political precisely because the court has drifted from the constitutional text, and rendered decisions based instead on policy preferences.  

In short, the Justices themselves have gotten political.  And because the Justices’ decisions are often political and transgress their constitutional role, the process becomes more political.

In fact, many of my constituents believe, with all due respect, that the Chief Justice is part of this problem.  

They believe that a number of his votes have reflected political considerations, not legal ones.  And certainly there are academics who agree.

In a recent New York Times article academics appealed to the Chief Justice’s political side.  They’re asking him to intervene in the current Supreme Court vacancy, suggesting it could be a John Marshall moment for him.   

That’s a political temptation that the Chief Justice should resist.  

I can’t think of anything any current Justice could do to further damage respect for the court at this moment than to interject themselves into what Chairman Biden called the political “cauldron” of an election year Supreme Court vacancy.  

In his recent speech, the Chief Justice said, “We’re interpreting the law, and not imposing our views.”  “If people don’t like the explanation, or don’t think it holds together, you know, then they’re justified, I think, in viewing us as having transgressed the limits of our role.”

Again, with all due respect to the Chief Justice, tens of millions of Americans believe, correctly, the Supreme Court has transgressed the limits of its role.  Tens of millions of Americans believe, correctly, that too many of the Justices are imposing their views, and not interpreting the law.  

That’s a major reason why we should have a debate about the proper role of a Supreme Court Justice.  And we need to debate whether our current Justices are adhering to their constitutional role.

As the Chief Justice remarked, although many of the Supreme Court’s decisions are unanimous or nearly so, the Justices tend to disagree on what the Chief Justice called the “hot button issues.”  We all know what kinds of cases he had in mind.   Freedom of religion, abortion, affirmative action, gun control, free speech, the death penalty, and others.

The Chief Justice was very revealing when he acknowledged that the lesser known cases are often unanimous and the “hot button” cases are frequently 5-4.   

But why is that?

The law is no more or less likely to be clear in a “hot button” case than in other cases.  

For those Justices committed to the rule of law, it shouldn’t be any harder to keep personal preferences out of politically charged cases than others.  

In some cases, the Justices are all willing to follow the law.  But in others, where they are deeply invested in the policy implications of the ruling, they are 5-4.  

The explanation for these 5-4 rulings must be that in the “hot button” cases, some of the Justices are deciding based on their political preferences and not the law.  

But, if “hot button” cases are being decided by politicians in robes, then the Supreme Court has no more of a right than the voters to be the final word.   

The Chief Justice regrets that the American people believe the court is no different from the political branches of government.  

But again, with respect, I think he is concerned with the wrong problem.  He would be well-served to address the reality, not the perception, that too often, there is little difference between the actions of the court and the actions of the political branches.  

Physician, heal thyself.

In case after 5-4 case, the Justices the Democrats appointed vote for liberal policy results.  

This can’t be a coincidence.  

Democrat Presidents know what they want when they nominate Justices – Justices who will reach politically liberal results regardless of what the law requires.  

This, of course, is what our current President means when he says that he wants Justices who look to their “heart” to decide the really hard cases.  That’s an unambiguous invitation for Justices to decide the “hot button” cases based on personal policy preferences.  

That, of course, isn’t law and it is not the appropriate role for the court.  
It’s no wonder that the public believes the court is political.

And what Democrat Presidents want in this regard, is what they get.  Even before Justice Scalia’s death, leading scholars found this Supreme Court to be the most liberal since the 1960’s.
Justices appointed by Republicans are generally committed to following the law.  There are Justices who frequently vote in a conservative way.  But some of the Justices appointed by Republicans often don’t vote in a way that advances conservative policy.

And contrary to what the Chief Justice suggested, a major reason the confirmation process has become more divisive is that some of the Justices are voting too often based on politics and not on law.   If they’re going to be political actors after they’re confirmed, then the confirmation process necessarily will reflect that dynamic.

For instance, just last week, after one of my Democrat colleagues met with Judge Garland, this Senator said, after discussing issues like “reproductive rights,” “I actually feel quite confident that he is deserving of my support.”

Obviously, I don’t know what they discussed during that meeting, or what Judge Garland said about “reproductive rights.”  And to be clear, I’m not suggesting anything inappropriate was discussed.  

My point is this: if Justices stuck to the constitutional text, and didn’t base decisions on their own policy preferences, or what’s in their “heart”, or on “empathy” for a particular litigant, then Senators wouldn’t deem it necessary to understand whether the nominee supports “reproductive rights.”

With this in mind, is it any wonder the public believes the court is political?

If we want the confirmation process to be less divisive, if we want the public to have more confidence that the Justices haven’t exceeded their constitutional role, then the Justices need to demonstrate that in politically sensitive cases, their decisions are based on the Constitution and the law and not on their political preferences.   

When the Justices return to their appropriate role of deciding cases based on the facts and law, public perception of the court will take care of itself.