Making the Supreme Court

By Siya Arora

President Richard Nixon had a golden opportunity in 1971 to fill a double vacancy on the Supreme Court when two justices resigned within the span of six days.

“Is there a woman yet? That would be a hell of a thing if we could do it,” Nixon said in a conversation with Attorney General John Mitchell about the selection.

By nominating the nation’s first female justice, Nixon calculated that his choice would be an easy sell for the Senate, which must confirm each appointment. Nixon also prioritized conservative ideology, credentials and experience — but not too much experience. Supreme Court justices serve for life, so in Nixon’s calculation the individual ideally would be young enough to make conservative judicial decisions for many years to come.

The selection process has gone from presidents who reward friends and allies to political parties and interest groups who influence presidents.

Nixon ultimately chose a man for the position (the first female justice, Sandra Day O’Connor, would join the Court in 1981), but the conversation provides a glimpse into the selection process for the nation’s highest court, which is charged with interpreting the Constitution and settling some of the most significant legal disputes in the United States. In their new book, Making the Supreme Court: The Politics of Appointments, 1930-2020 (Oxford University Press, August 2023), Princeton professors Charles Cameron and Jonathan Kastellec analyze the evolution of nominations from a process based largely on friendships and patronage to one highly influenced by organized interest groups and political parties. They trace the roots of today’s ideological split consisting of six conservative and three liberal justices, and discuss how reforms such as expanding the number of justices and imposing term limits could lead to a Court that is more representative of the nation.

Their analysis comes at a time when the Court has come under scrutiny for decisions on issues many argue do not reflect popular sentiment. In June 2022, the national right to abortion was returned to the states when Roe v. Wade was reversed. A year later, the Supreme Court made the decision to end affirmative action, barring colleges and universities from factoring race into admissions.

Cameron and Kastellec’s exploration of how nominee selection has changed over the past 90 years was a massive undertaking, involving collaborators and students, including undergraduates, who collected and analyzed data from numerous sources. “In the beginning, we thought, Oh, this is going to be a pretty simple story about bargaining between presidents and Congress,” said Cameron, professor of politics and public affairs. “But the data just kept saying, ‘that’s not the way it is.’ Our ideas underwent pretty much a complete transformation from the beginning to the end.”

The process by which presidents choose nominees has evolved substantially, the team found. In the Great Depression of the 1930s, President Herbert Hoover spent just a few hours selecting candidates for each of three Court vacancies. His successor Franklin D. Roosevelt chose nine justices using the requirement that candidates support his New Deal economic and social programs. President Harry Truman in 1949 replaced a vacancy with Sherman Minton, a trusted friend and colleague, who walked into the White House and said, “Harry, I want that job on the Supreme Court,” and Truman replied, “Okay, I’ll give it to you.” Ronald Reagan in the 1980s delegated selection to the Department of Justice and the White House legal counsel.

Over the past 40 or so years, however, political parties and special interest groups have strengthened their ability to influence the president to choose candidates with specific values, such as being pro-life or tough on crime. “What surprised us is that you can look at the changes in the nomination process as kind of part and parcel or even an outgrowth of the broader changes in American politics,” said Kastellec, professor of politics.

The rise of external influences on presidential decisions has also led to demographic changes in the makeup of the Court. While more representative of gender and race than past Courts, today’s justices are less representative of the U.S. population in other ways. For example, eight of today’s nine justices graduated from either Harvard or Yale law schools, and most are from the East Coast.

The researchers used data to demonstrate that the past four decades of activism by parties and interest groups has indeed created a Court that reliably produces conservative decisions. What is more, computer simulations conducted by the authors predict that, barring highly unlikely events, the conservative bent of the Court will persist for several decades.

To examine ways to restore the Court’s ideological parity, the authors considered two potential reforms: implementing term limits and expanding the number of justices. Via simulations, the team found that imposing term limits of either nine or 18 years would at first cause a swing to the left, but by 2060 would result in a Court that is roughly balanced between conservative and liberal justices.

The researchers also considered what would happen if the number of justices is increased. The strategy has been tried before. Between 1789 and 1869, the number of seats on the Court varied between six and 10. The authors found that adding just two Democrat-appointed seats would create a more ideologically balanced Court, but warn that a tit-for-tat process could ensue, resulting in a roster of 30 justices by 2100.

Presidents, agendas, and even the law changes. There was a time when a president blatantly said he wanted a young, conservative woman to be the next justice. Now, nominees are chosen via agendas regarding how they would vote in certain decisions. The selection process has gone from presidents who reward friends and allies to political parties and interest groups who influence presidents. With an ever-evolving political environment, it is only natural to wonder how much more change is to come and whether it will strengthen or weaken American democracy.