Supreme Court Analysis
With the passing of Ruth Bader Ginsburg, there has been a renewed interest around the Supreme Court and presidential-election-year confirmations. I really like numbers and data analysis, so I decided to put together my own analysis of the Supreme court from 1900* through the present. I welcome any feedback, comments or corrections if anything in my analysis or below is factually inaccurate.
I have tried to only present factual data with the intent of learning more about the Supreme Court rather than providing my personal analysis and conclusions. I have not linked to any sources that are rated as "Far-left" or "Far-right." However, while trying to be neutral and factual, the selection of which data points are presented or unintentionally excluded is likely influenced by my own personal biases. To put these biases upfront on the table, I grew up in a religious, very politically conservative home but over the course of the last 5 years or so have started to lean slightly left of center, particularly on social issues. I voted for the Republican presidential candidates in both 2008 and 2012. I did not feel comfortable supporting either political candidate in 2016 and so I voted for a conservative third-party candidate. I was a registered Republican until early 2020 when I disaffiliated from the Republican party and am not currently officially affiliated with any political party. I intend to vote for Joe Biden in the upcoming election. On the current discussions over election-year confirmations, I support timely confirmation hearings and votes including during election years, which I believe should have applied to both 2016 and the current vacancy in 2020.
Control of the Court since 1900
Republican appointees have controlled the court since 1970.
Votes by acclamation: 26 (also called a "voice vote" - no vote tallied, based on verbal responses, most recently used in 1965)
Votes tallied: 31
Average vote margin: 55
Largest vote margin: 99 (1981 Justice Sandra Day O'Connor 99-0)
Smallest vote margin: 2 (2018 - Justice Brett Kavanaugh 50-48)
Other close votes: Justice Thomas 52-48 (1991), Justice Alito 58-42 (2006), Justice Gorsuch 54-45 (2017)
Lowest Senate voter turnout: 50 (1914 Justice James McReynolds 44-6)
Unanimous votes: 5 (most recent was Reagan's appointment of Justice Kennedy, confirmed in 1988 election year 97-0 with Democrat-controlled Senate)
Deaths of a Sitting Justice
1960 - 2020: 3
1900 - 1960: 16
Gender and Racial Composition of Supreme Court Justices
There have been four women on the Supreme Court, beginning with the nomination of Justice Sandra Day O'Connor in 1981, followed by Justices Ginsburg, Sotomayor, and Kagan. Justices Thurgood Marshall and Clarence Thomas have been the only African American justice. The remaining 107 justices have been white men. Justice Sonya Sotomayor, appointed in 2009, is the first and only Hispanic justice. Several significant ethnicities in the United States have not yet been represented on the Supreme Court, including Asian, Native American, and Pacific Islander.
Religious affiliation
Supreme Court Justices appointed since 1900 (and prior) have been predominantly Protestant, but for the last few decades there has been a shift towards Catholicism. Prior to the death of Justice Ginsburg, the court consisted of 5 Roman Catholics, 3 Jews, and 1 Episcopalian (raised Catholic).
The first Jewish Supreme Court justice was Justice Louis Brandeis, appointed in 1916 after a contested debate allegedly fueled by anti-Semitic sentiments in the US at the time. Justice McReynolds reportedly refused to sit next to him for the official Supreme Court picture and would not speak to him for the first three years after his appointment. Subsequently, the Court had an informal "Jewish seat" starting with the appointment of Justice Cardozo in 1932 and ending with the resignation of Justice Fortas in 1969. Three Jewish justices have been appointed since - Justices Ginsburg, Breyer and Kagan.
A number of significant U.S. religious groups have not been represented on the Court, including Orthodox Christians, The Church of Jesus Christ of Latter-day Saints (Mormons), Jehovah's Witnesses, Seventh-day Adventists, Pentecostals, Muslims, Hindus, Buddhists, and Sikhs. President Gerald Ford reportedly considered Dallin Oaks (former president of BYU and justice of the Utah Supreme Court, now an apostle of The Church of Jesus Christ of Latter-day Saints) for two nominations, but Ford "crossed Oaks's name off the list early on, noting in the margin that a member of the LDS Church might bring a confirmation fight."
No openly professing atheist has ever been appointed to the Court.
The data summarized below presents the religious affiliations of US Supreme Court Justices appointed since 1900 based on their outwardly expressed faith. It would be significantly more difficult to gather accurate data and conclude on their inner beliefs and levels of devotion. Justice Cardozo was Jewish but reportedly was agnostic later in life while remaining proud of his Jewish heritage. Justice Stevens was accused of being hostile toward religion due to his strict interpretations of separation of church and state but was a professed Protestant.
The "Rule of Four" is an informal policy of the Court where four justices are required to give their consent (writ of certiorari) to hear a case from a lower court. This has been in place to prevent the Majority from controlling the court docket.
Number of Justices and "Court Packing"
"Court Packing" refers to the potential to add additional justices to court to obtain a favorable composition of justices. This was proposed by FDR in the failed Judicial Procedures Reform Bill of 1937 in response to parts of FDR's New Deal being ruled unconstitutional. Both current presidential candidates (Trump and Biden) have stated that they oppose court packing as alternative to gain control of the court.
Historical precedents on election year vacancies and/or confirmations
As noted above, my analysis only goes back to 1900*. For a further breakdown pre-1900, see Appointment and confirmation to the Supreme Court of the United States -Nominations in the last year of a presidency. This article from FiveThirtyEight.com (a Center-rated media source for political commentary) also has a neat chart that breaks down election year vacancies and results: What Ruth Bader Ginsburg’s Death Could Mean For 2020 And The Supreme Court.
2020 - Death of Justice Ruth Bader Ginsburg (Democrat appointed) on September 18, 2020 created vacancy with a Republican President and Republican Senate. President intends to nominate and Senate Republicans intend to hold a hearing and confirm before or shortly after the election.
2016 - Death of Justice Antonin Scalia (Republican appointed) created vacancy with Democratic President and Republican Senate. President nominated Merrick Garland in March 2018 and Senate Republicans did not hold a hearing or a vote, citing the upcoming election. This was the longest vacancy in the court since 1900 (beginning of my data collected).
1988 - Retirement of Justice Lewis Powell (Republican appointed) on June 26, 1987 (the year prior to the election) created a vacancy with a Republican President and a Democratic Senate. Justice Anthony Kennedy was confirmed on February 3, 1988 with a unanimous vote of 97-0.
1956 - Retirement of Justice Sherman Minton (Democrat appointed) on October 15, 1956 created a vacancy with a Republican President and Democratic Senate less than a month before the election. President Eisenhower (R) appointed Justice William Brennan, a Catholic Democrat as a recess appointment (appointed to the court while Senate was not in session, to be confirmed at opening of next session) shortly before the election in a hope to bolster his re-election prospects. President Eisenhower won re-election and the confirmation vote was completed on March 19, 1957 after the election with an acclamation vote (voice vote, votes not tallied)
1940 - Death of Justice Pierce Butler (Republican appointed) on November 16, 1939 (year before election) created vacancy with Democratic President and Democratic Senate. Justice Frank Murphy was confirmed on January 16, 1940 prior to the election with an acclamation vote.
1916 - Retirement of Justice Charles Hughes (Republican appointed) on June 10, 1916 created a vacancy with a Democratic President and Democratic Senate. Justice John Clarke was confirmed on July 24, 1916 prior to the election with an acclamation vote.
1912 - Death of Justice J. Harlan (Republican appointed) on October 14, 1911 created a vacancy with a Republican President and a Republican Senate. Justice Mahlon Pitney was confirmed on March 13, 1912 prior to the election by a vote of 50-26.
* This data analysis only goes back to 1900. This is for three reasons. 1) the analysis was done in Excel which only readily supports dates after 1900, 2) Putting together this much data was very time consuming and 3) Historical data and precedents becomes less relevant to the present the further back you go based on changes in the political landscape, political parties, technologies, ideologies, etc. This last one is admittedly perhaps just a post hoc rationalization for the first two reasons. This is not intended to say pre-1900's data is not relevant for discussion - it just was not my primary focus.
very cool... It's also interesting to me that as far as I know the court has ALWAYS sought to be diverse, it's just previous era's versions of diverse has been different than ours. Initially it was very important that the white men all came from different regions of the county, and then in the first half of the 20th century it was said that there was a "Jewish seat" and a "Catholic Seat" on the Court, all informally of course, and today, that's not a big deal. As a matter of fact, I bet most Americans would be surprised to learn that today's court is almost all Roman Catholic and Jewish, but it's obviously not that big of a deal. (Kavanaugh is sometimes described as Episcopalian, sometimes as Catholic. Thomas has also gone back and forth in his religious life, but has described himself as Catholic for the past 20 years or more.)
ReplyDeleteYes, thanks for this comment. I may add religious affiliation of justices to my analysis, but that does get a littler trickier as it's not always straightforward, such as with Kavanaugh. I suspect in more recent years, on the Supreme court as well as Congress and the President (*cough* Trump) who are religious in name only because to not affiliate with religion in America or to be openly agnostic or atheist is equivocated with a lack of moral character. The first Jewish seat was Justice Brandeis in 1916, which was highly contentious given anti-Semitic sentiment that existed then, to the point where Justice McReynolds apparently refused to sit next to him for the official picture of all the justices. Then later there was an unofficial "Jewish seat" for many years and up until the death of Ginsburg, there were 3 Jewish justices, which is significantly disproportionate to the demographics of America where Jews make up about 2% of the population. Dallin Oaks was on Ford's list as a potential candidate but was apparently crossed off early in the process because his faith was considered controversial and had the potential to spark a confirmation fight.
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