In light of the recent decision in Dobbs v. Jackson Women’s Health Organization,[1] it has become increasingly apparent that the Supreme Court has become a political pawn in a now extremely polarized American government. Not so long ago, however, the Court had still been a well-regarded and highly respected institution of our American democracy.[2] Justices served as nonpartisan actors who interpreted the meaning of the Constitution consistently through their respective judicial philosophies.[3] Ideally, judicial decisions would serve as a check on the legislative and executive branches, promoting the separation of powers in our government.[4] While the Constitution allows Congress to organize the judiciary,[5] growing partisanship within the legislative branch has, in the authors’ view, influenced the Court’s operations. The infiltration of political agendas and partisan interests into the judiciary has become increasingly evident, leading the public to believe that the Court is no longer maintaining its ideal function as an unbiased institution.[6] A recent poll found that while eighty-four percent of Americans agreed that Supreme Court Justices should not bring their own political views into the cases they decide, only sixteen percent of people thought that the Justices successfully do so.[7]

The growing politicization of the Court manifests in many ways. Voting patterns among Justices increasingly fall along party lines. The appointment process of Justices, swayed by a highly polarized legislature, adds to the concern. Furthermore, a growing public opinion of judicial decisions as promoting one-sided political victories rather than being impartial judgments highlights the overt influence of politics on the Court.[8] This article delves into this transformation. Part I recounts past Justices who championed interpreting the Constitution without political bias. Part II contrasts this with the current Court’s pronounced partisan leanings. Part III explores the potential reasons this shift has occurred, highlighting the broader impact of political polarization and its implications for our government’s integrity.

II. Historical Times—The Tradition of Judicial Integrity

The issues of partisanship and political manipulation of the Court have not always been as problematic as they are today. In contrast to the strong partisan divides currently taking place, the Court did not use to have such strong ideological biases that clearly coincided with party lines.[9] In prior times, the Court was much more resemblant of the original intentions and ideals laid out by the Framers of the Constitution.[10] Public opinions of the Court also reflect this notion: in 1975, forty-nine percent of Americans had expressed a high level of confidence in the institution of the Court, but in 2022, only twenty-five percent of Americans felt this way.[11]

To be clear, we do not contest the existence of partisanship and political biases in the Court prior to the twenty-first century.[12] Presidents prior to the 2000s were less likely to appoint Justices solely based on their political leanings, and Justices were more likely to cross party lines and vote in line with their judicial philosophies.[13] For example, during the Great Depression, there was a blatant political shift sparked by certain Justices after President Roosevelt threatened to pack the Court and ensure the constitutional protection of his New Deal programs.[14] However, outside such extreme instances, much research reveals less partisan division in earlier eras of the Court before 2010.[15] Among the 322 most important cases in the period from 1938-2010 with more than one dissenting Justice, only one saw a complete party-appointed Justice divide, demonstrating just how rare it was for cases to be so decidedly split down party lines.[16] Still, visual analysis shows increasing ideological conformity among Justices appointed by presidents of the same party between 1986-2015, contrasting the more varied ideologies of Justices in the Eisenhower and Truman eras.[17] Despite infrequent instances, the overall trends have led us to see that the Court was less partisan prior to the twenty-first century.[18]

President Eisenhower’s appointment of Chief Justice Earl Warren exemplifies this non-partisanship in the past. While a conservative Republican, Eisenhower chose Warren, then-Governor of California, with liberal inclinations.[19] While looking to appoint the new Chief Justice, Eisenhower reportedly said he was looking for “a man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.”[20] Eisenhower wanted to appoint the most fit person for the job with his specific criteria in mind, not a conservative Justice to propel his political scheme.[21] He appointed who he thought was the right man for the job, a man with an unbiased view in his interpretation of the Constitution who acted with unwavering integrity.[22] As it turns out, the Warren Court became the most liberal court in history, delivering landmark decisions like Brown v. Board of Education,[23] Miranda v. Arizona,[24] Baker v. Carr,[25] and Gideon v. Wainwright,[26] all monumental in advancing civil rights. Despite Eisenhower later regretting his appointment of Warren,[27] his appointment of Chief Justice Warren had nothing to do with his political affiliation and partisan bias and everything to do with Warren’s rapport and experience.

President Truman’s judiciary appointments also reflect how the appointment process was once a more apolitical endeavor. Truman, a liberal Democrat, notably appointed four Justices during his presidency who ranged from moderately conservative to moderately liberal.[28] Using Jeffrey Segal’s ideological scores, which range from -1.00 (extremely conservative) to 1.00 (extremely liberal), Truman’s choices—Burton, Vinson, Clark, and Minton—scored -0.44, 0.50, 0.00, and 0.44, respectively, indicating their relatively moderate makeup.[29]

Not only was the appointment process once a nonpartisan endeavor, but the Justices’ individual decision-making was similarly free of political conformity. Justice Hugo Black, who served from 1937-1971, is a prime example of this. A staunch literalist, he interpreted the Constitution by its exact wording, disregarding personal or political motivations.[30] That is why, for instance, he rejected substantive due process,[31] and supported full incorporation of the Bill of Rights.[32] Justice Black’s decisions on First Amendment cases most famously stuck true to his literal interpretation of the Constitution. In Smith v. California, he took the absolute position that the “no law” verbiage in the First Amendment meant the government could not infringe on free speech in any way.[33] While controversial, his decisions solely rested on his fidelity to the Constitution’s text, not personal or political beliefs. Considered an “unabashed partisan for the Constitution,”[34] Black remains a model of impartial judicial integrity.

Justice Antonin Scalia, who served on the Court from 1986-2016, is another example of a nonpartisan Justice who strictly prioritized his judicial philosophies above all else. Embracing a rigorous originalist interpretation of the Constitution, Justice Scalia applied this philosophy even when it diverged from his personal and political beliefs.[35] In Texas v. Johnson, Scalia was part of the majority decision upholding flag burning as a form of protected free speech, despite his personal disdain for flag burning.[36] In discussing how his vote in Johnson went against his personal principles, Scalia remarked, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”[37] Scalia’s decision to prioritize his judicial philosophy and constitutional interpretation above his own beliefs is a noteworthy demonstration of impartiality in the Court. However, it should be noted there is a persuasive argument to be made about the inconsistency of Scalia’s decision-making on the Court.[38] Some authors have argued that even though Scalia called himself an originalist, he was able to bend his philosophy along the lines of political ideology. Scalia’s use of the originalist view was flexible enough to allow him to “deliver opinions consistent with his ideology.”[39] Although these claims bring up valid points about Scalia’s time on the Court, it is more difficult to prove that Scalia was intentionally bending his philosophy to serve an ideological goal. If Scalia voted along the lines of his political ideology, it was more often because his ideology happened to fall alongside his originalist view of the Constitution. The instance in Johnson is a prime example to highlight the clear and intentional prioritization of judicial philosophy over political ideology, marking a time of clear nonpartisanship on the Court.

The examples of Justices Black and Scalia highlight how past Justices consistently upheld judicial integrity as demonstrated through their voting behaviors. This shielded the Court from political biases and machinations. However, as we transition into examining contemporary dynamics on the Court, a different narrative emerges.  

III. Changing Times—The Erosion of Impartiality

The trends of the Court in recent years show that it is steadily becoming more politically driven and partisan than it was in prior eras. This shift is evident in the increasingly partisan ideologies of the Justices and decisions that seem driven more by political motives than legal interpretations. The Court’s balance is further disrupted by the absence of swing Justices, who historically are key to ensuring neutrality on the Court.[40] Justice Kagan, for instance, highlighted this concern at a Princeton University Conference and acknowledged that it could jeopardize the Court’s legitimacy as an independent and neutral institution.[41] Moreover, in the recent 2021 term alone, fourteen cases (out of the sixty-six cases the Court decided in total) were polarized decisions, with all Republican-appointed Justices opposing their Democratic-appointed counterparts.[42] Yet such partisan splits were not at all a common occurrence in the Court’s decisions before the mid-2000s, as the figure below shows:[43]

The changing trends in presidential appointments of Justices also reinforce the notion that the ideologies of the Justices themselves are becoming increasingly partisan. It has been a relatively long time since a president elected a Justice with a slightly opposing political ideology. Notably, Justice Byron White, appointed in 1962, was the last moderate-to-conservative Democratic appointee, and Justice David Souter, appointed in 1990, was the last moderate-to-liberal Republican appointee.[44] Now, Presidents are more likely to choose a Justice that specifically falls in line with their own ideology. For example, both Clinton and Obama were careful to select from a pool of candidates whose records showed strong evidence of liberalism.[45] “Today, every Justice appointed by a Democratic president stands to the left of every Justice appointed by a Republican president, and this is not likely to change any time soon.”[46] The growing correlations of political ideology between the Justices and the presidents that appointed them is an important indicator of the increasing partisanship on the Court.

Justice Amy Coney Barrett’s judicial philosophy and decision-making is another example of how the Court can potentially succumb to a game of politics. Renowned for advocating judicial restraint and voicing criticism toward prior courts for allegedly overstepping through judicial activism, Justice Barrett has also expressed staunch support for stare decisis—the adherence to legal precedent—to safeguard reliance on existing judicial decisions.[47] However, in Dobbs v. Jackson Women’s Health Organization,[48] Justice Barrett turned against her own claimed philosophy. She had no problem joining the opinion of Justice Samuel Alito, which overturned Roe. v. Wade and the constitutional right to an abortion.[49] Overturning a decision as settled as Roe appears particularly perplexing given her prior statement on the importance of following precedent.

As well, the Dobbs decision is a clear example of judicial activism, one “every bit as activist as the Roe majority.”[50] According to Justice Barrett, practicing stare decisis and judicial restraint is imperative to uphold the Constitution unless, of course, it does not play to the political goals of her preferred party. However, skeptics may argue it is difficult to prove that Justice Barrett’s actions were politically motivated, and this case is a special example. It is true that Justice Barrett would likely reply with the argument that Dobbs presented a unique scenario because, in her perspective, Roe was based on an unconstitutional law in the first place, and thus, stare decisis did not apply. While it is true that the motivations behind Justice Barrett’s judicial decision-making cannot be completely proven, a considerable amount of evidence still seems to point in the direction of political bias.

This bias is not only found within the Republican party. The constant push from Democrats to expand the Court in order to regain a majority also exemplifies the growing partisanship seeping into the Court. After the new conservative majority formed in the Court following President Trump’s appointments, Democrats under President Biden’s rule sought to gain the majority back by introducing a new bill to expand the Court from nine Justices to thirteen, as well as altering how long each Justice would serve.[51] The timing of this initiative seems eerily political and reminiscent of President Roosevelt’s threats of court-packing.[52] Adding four open seats to the Court with a Democrat as president to appoint them would switch the majority to the liberal side. This initiative would undoubtedly favor the Democratic party. Yet, the Court is not meant to be a political battleground but a bastion of constitutional fidelity, rising above partisan politics.  

IV. Modern Realities—The Causes of Judicial Partisanship

We now transition to the question of why: why is there increasing partisanship on the Court? Ultimately, the answer lies in the appointment process of the Justices. Because judicial appointments are controlled by the political branches of government, their polarized leanings inevitably seep into the Court’s operations.[53]

There is little doubt that political polarization in the United States is currently at an extreme high. Partisan hostility has been growing over the last 40 years, with an especially dramatic increase in the past decade.[54] Partisan division has caused a lack of unity in Congress. Once similar political agendas between the parties have now become dramatically distinct.

In the figure above,[55] the steady increase in polarization in Congress is evident. Charting U.S. House Members from 1949–2012, with Republicans in red and Democrats in blue, the graphic reveals interconnectedness based on voting agreements: since 1980, members of the House have persistently moved farther apart from each other, leaving virtually no ideological overlap between the two parties now.[56]

Thus, the high polarization in the executive and legislative branches implicates the appointment process for Justices. To be clear, the appointment process has never been completely isolated from politics, yet it has clearly become more entangled with political maneuvering in recent years. Politicians increasingly view judicial appointments as opportunities to benefit their own party instead of maintaining the Court’s legitimacy. The appointment process has now grown extremely combative, with House Representative Brendan Boyle likening it to an “MMA cage fight to the death.”[57] The Senate votes during the judicial confirmation process underscore the Congressman’s assertion. For the most part, the Justices nominated prior to 2005 were confirmed almost unanimously by the Senate.[58] However, since Chief Justice John Roberts’s confirmation, opposition votes have surged.[59] Finally, the clearest illustration of the escalating partisan influences on judicial appointments was perhaps Senate Leader Mitch McConnell’s political opportunism and double standard. In March 2016, McConnell blocked President Obama’s nomination of Merrick Garland to the Court, claiming that it was too close to the upcoming election and it should be up to Obama’s successor to fill the vacant Supreme Court seat.[60] Yet in 2020, he fast-tracked Justice Barrett’s nomination mere weeks before the presidential election.[61] Senator McConnell’s open manipulation of this process showcases the dire state of judicial appointments and Congress’s blatant lack of respect for what the Court should be: the one and only nonpartisan branch of government. Today’s hyper-polarized appointment process threatens and destroys this very essence of the judicial branch.

The escalating partisanship on the Court, catalyzed by a highly politicized appointment process, is not merely an academic concern—it poses a real threat to American democracy.[62] It erodes the foundational separation of powers, allowing the legislative and executive branches to unduly influence the Court with their political agendas.[63] This not only risks the Court’s legitimacy,[64] but, given its reliance on public trust over fiscal or military might,[65] endangers its very role in interpreting laws. Still worse, if the Court’s judgments waver based on political winds, it casts doubt on our Constitution’s enduring authority.[66] After all, what weight does the Constitution hold if its interpretation can shift with the political tides?

V. Final Thoughts

Our analysis reveals a marked shift in the Supreme Court’s judicial decision-making, with Justices displaying increasing partisanship that mirrors our country’s deepening political divide. This divergence from historical norms profoundly threatens the foundational principle of separation of powers, and Justices must recognize the dangers their increasing partisanship poses to our democracy. Moving forward, we, the public, must vigilantly assess if the Court corrects course to uphold its independence or continues to be an extension of the political branches. We must also recalibrate our perception of the Court as a wholly separate and unbiased entity, acknowledging the tangible impacts of political polarization: if the Court has indeed compromised its reputation for impartiality, then comprehensive reform becomes paramount. A potential remedy could involve reevaluating the judicial nomination process to introduce non-partisan committees responsible for vetting candidates based on merit and qualifications rather than political affiliations. Measures like this can not only rejuvenate trust in the judiciary but also reinforce the original intent of checks and balances. To safeguard the very foundations of our democracy, we must act decisively, ensuring the Court remains a beacon of Justice, not a shadow of politics.

[1] 142 S. Ct. 2228 (2022).

[2] Geoffrey R. Stone, The Supreme Court in the 21st Century, DÆᴅᴀʟᴜs, Spring 2013, at 36, 36.

Nonetheless, the Supreme Court has consistently been the most respected of the three branches of the federal government. This is so because, although the Court often frustrates the short-term preferences of the majority, the public generally seems to understand that it is acting in a principled manner that will serve the long-term interests of the nation.

Id.

[3] Jeffrey Rosen, Can the Judicial Branch be a Steward in a Polarized Democracy?, DÆᴅᴀʟᴜs, Spring 2013, at 25, 25-26 (noting that Chief Justice Marshall advocated that Justices rule as “a nonpartisan steward in a polarized democracy.”).

[4] See, e.g., The Federalist No. 78, at 381 (Alexander Hamilton) (Lawrence Goldman ed., 2008) (“The complete independence of the courts of justice is peculiarly essential in a limited Constitution.”).

[5] “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, § 1.

[6] Rosen, supra note 3.

[7] Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement, PEW RSCH. CTR. (Feb. 2, 2022), https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/.

[8] See Neal Devins & Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 SUP. CT. REV. 301, 301 (2017).

[9] Id.

[10] Id. at 310-313.

[11] Supreme Court, GALLUP, https://news.gallup.com/poll/4732/supreme-court.aspx (last visited Feb. 22, 2023).

[12] E.g., Joan Biscupic, The Supreme Court Hasn’t Been this Conservative Since the 1930s, CNN (Sep. 26, 2020), https://www.cnn.com/2020/09/26/politics/supreme-court-conservative/index.html.

[13] Devins & Baum, supra note 8, at 310-316.

[14] See Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. Legal Analysis 69, 70 (2010); see also Jamie L. Carson & Benjamin A. Kleinerman, A Switch in Time Saves Nine: Institutions, Strategic Actors, and FDR’s Court-Packing Plan, 113 Pub. Choice 301, 313-314 (2002).

[15] See Devins & Baum, supra note 8, at 310-316.

[16] Id. at 316. The “most important cases” are as determined in David Savage, Guide to the U.S Supreme Court, 1294-1340 (5th ed. 2010).

[17] Devins & Baum, supra note 8, at 318–19.

[18] Id.

[19] Ed Cray, Chief Justice: A Biography of Earl Warren 259-63 (1997).

[20] William Fassuliotis, Ike’s Mistake: The Accidental Creation of the Warren Court, Va. L. Wkly. (Oct. 17, 2018), https://www.lawweekly.org/col/2018/10/17/ikes-mistake-the-accidental-creation-of-the-warren-court.

[21] Id.

[22] Id.

[23] 347 U.S. 483 (1954) (declaring racial segregation in public schools unconstitutional).

[24] 384 U.S. 436 (1966) (establishing that detained criminal suspects must be informed of their rights of counsel and against self-incrimination before police questioning).

[25] 369 U.S. 186 (1962) (laying down the foundation for the principle of “one person, one vote”).

[26] 372 U.S. 335 (1963) (holding that states must provide an attorney to criminal defendants unable to afford one).

[27] Fassuliotis, supra note 20.

[28] See Mary McMurray, Truman’s Supreme Court Justices, Truman Libr. Inst. (Mar. 16, 2016), https://www.trumanlibraryinstitute.org/tru-history-scotus/; see also Devins & Baum, supra note 8, at 315.

[29] Jeffrey A. Segal et al., Ideological Values and the Votes of U.S. Supreme Court Justices Revisited, 57 J. Pol. 812, 816 (1995).

[30] Daniel A. Cotter, Justice Hugo Black (1886-1971), Constituting Am., https://constitutingamerica.org/justice-hugo-black-1886-1971-guest-essayist-daniel-a-cotter/ (last visited Jan. 4, 2024).

[31] See In re Winship, 397 U.S. 358, 382 (1970) (Black, J., dissenting) (arguing there was no basis in the Constitution’s text for the doctrine of substantive due process).

[32] See Adamson v. California, 332 U.S. 46, 68–123 (1964) (Black, J., dissenting) (advocating for a textualist interpretation of the Fourteenth Amendment to uphold and apply the Bill of Rights at the state level).

[33] 361 U.S. 147, 157 (1959) (Black, J., concurring).

[34] Nicandro Iannacci, Hugo Black, Unabashed Partisan for the Constitution, Nat’l Const. Ctr. (Aug. 12, 2019), https://constitutioncenter.org/blog/hugo-black-unabashed-partisan-for-the-constitution.

[35] See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cɪɴɴ. L. Rᴇᴠ. 849, 864 (1989) (endorsing originalism because, among other reasons, “it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself.”).

[36] 491 U.S. 397, 399 (1989).

[37] Scott Bomboy, Justice Antonin Scalia Rails Again About Flag-Burning “Weirdoes”, Nat’l Const. Ctr. (Nov. 12, 2015), https://constitutioncenter.org/blog/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes.

[38] See, e.g., Richard L. Hasen, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption 172–73 (2018).

[39] Id. at ix; see also District of Columbia v. Heller, 554 U.S. 570 (2008). While Justice Scalia did employ an originalist approach to interpret the Constitution in his opinion, one could argue that he appeared to have downplayed the contextual significance of a militia in the Framers’ original intent when drafting the Second Amendment.

[40] Peter K. Enns & Patrick C. Wohlfarth, The Swing Justice, 75 J. Pol. 1089, 1090 (2013).

[41] Sophie Tatum, Justice Kagan Worries About the ‘Legitimacy’ of a Politically Divided Supreme Court, CNN, (Oct. 5, 2018), https://edition.cnn.com/2018/10/05/politics/supreme-court-elena-kagan-legitimacy/index.html.

[42] Angie Gou et al., STAT PACK for the Supreme Court’s 2021-22 Term, SCOTUSblog 3 (July 1, 2022), https://www.scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-PACK-OT2021.pdf.

[43] Amelia Thomson-DeVeaux & Laura Bronner, The Supreme Court's Partisan Divide Hasn’t Been This Sharp In Generations, FiveThirtyEight (July 5, 2022), https://fivethirtyeight.com/features/the-supreme-courts-partisan-divide-hasnt-been-this-sharp-in-generations/.

[44] Devins & Baum, supra note 8, at 316.

[45] Id. at 334.

[46] Id. at 361.

[47]

A faithful judge resists the temptation to conflate the meaning of the Constitution with the judge’s own political preference; judges who give into that temptation exceed the limits of their power by holding a statute unconstitutional when it is not. That was the heart of the originalist critique of the Warren and Burger Courts.

Amy Coney Barrett, Countering the Majoritarian Difficulty 32 Const. Comment. 61, 82 (2017) (reviewing RANDY BARNETT, OUR REPUBLICAN CONSTITUTION (2016)).  “Stare decisis is a sensible rule because, among other things, it protects the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.” Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1921 (2017).

[48] 142 S. Ct. 2228 (2022).

[49] Id. at 2242.

[50] Alan B. Morrison, Selective Judicial Activism in the Roberts Court, Geo. Wash. L. Fᴀᴄ. Pᴜʙʟ’ɴ & Oᴛʜᴇʀ Wᴏʀᴋs, 2022, at 1, 2.

[51] See, e.g., Sahil Kapur, Democrats to Introduce Bill to Expand Supreme Court From 9-13 Justices, NBC News (Apr. 14, 2021), https://www.nbcnews.com/politics/supreme-court/democrats-introduce-bill-expand-supreme-court-9-13-justices-n1264132.

[52] History.com Editors, FDR Announces “Court-Packing” Plan, History, https://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan (last updated Feb. 3, 2021).

[53] U.S. Const. art. II, § 2, cl. 2.

[54] See, e.g., As Partisan Hostility Grows, Signs of Frustration With the Two-Party System, Pew Rsch. Ctr. (Aug. 9, 2022), https://www.pewresearch.org/politics/2022/08/09/as-partisan-hostility-grows-signs-of-frustration-with-the-two-party-system/.

[55] Clio Andris et al., The Rise of Partisanship and Super-Cooperators in the U.S. House of Representatives, PLoS One, Apr. 21, 2015, at 6, https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0123507&type=printable.

[56] Id.

[57] Brendan F. Boyle, The Growing Scope of the Supreme Court and Our Democracy, The Hill (Oct. 15, 2020), https://thehill.com/blogs/congress-blog/judicial/521247-the-growing-scope-of-the-supreme-court-and-our-democracy/.

[58] See Devins & Baum, supra note 8, at 324.

[59] Id.

[60] Jon Schuppe, Merrick Garland Now Holds the Record for the Longest Supreme Court Wait, NBC Nᴇᴡs (July 20, 2016), https://www.nbcnews.com/news/us-news/merrick-garland-now-holds-record-longest-supreme-court-wait-n612541.

[61] Carl Hulse, How Mitch McConnell Delivered Amy Coney Barrett’s Rapid Confirmation, N.Y. Times (Nov. 3, 2020), https://www.nytimes.com/2020/10/27/us/mcconnell-barrett-confirmation.html.

[62] Abigail Waller, Letter: The Weaponization of the Supreme Court, Sᴀʟᴛ Lᴀᴋᴇ Tʀɪʙ. (Oct. 24, 2020), https://www.sltrib.com/opinion/letters/2020/10/24/letter-weaponization/.

[63] See Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma 132 HARV. L. REV. 2240, 2245 (2019).

[64] Id.

[65] See THE FEDERALIST NO. 78 (Alexander Hamilton).

[66] See Grove, supra note 63, at 2246.