Foreword: The October 2018 Term: Leaving Things Undecided—and Non-Partisan—For Now

Abstract

The October 2018 Term of the Supreme Court of the United States was not one for the history books, and that was likely, at least in part, by design. The Court appeared self-consciously to avoid taking cases that would have further propelled it into the national spotlight soon after the uncommonly divisive confirmation hearings of Justice Brett Kavanaugh. During those hearings, Justice Kavanaugh was perceived by many to have behaved like a political partisan in response to explosive sexual assault allegations dating back to high school that Dr. Christine Blasey Ford made against him. The hearings likely raised concerns among at least some of the justices—especially Chief Justice John Roberts—about preserving the Court’s reputation as not just another partisan institution.

The Term also featured a public disagreement between Chief Justice Roberts and President Donald Trump over whether there were “Obama judges or Trump judges, Bush judges or Clinton judges” in the federal judiciary. One way to adjudicate that disagreement, at least as far as the last Term is concerned, is to look at how the cases fractured the Court: How often, and in which cases (some are more important than others), were the five Republican appointees on one side and the four Democratic appointees on the other? A second way to evaluate the disagreement between the chief justice and the president is to examine the relationship of the newly reconstituted Court to precedent: Are the five Republican appointees throwing caution to the wind and overruling numerous significant precedents over the objections of the four Democratic appointees? A third way is to analyze the Court’s reaction to pretextual justifications for prominent actions taken by the Trump administration, a situation especially likely to divide “Obama judges and Trump judges” if the president’s claim is correct: Did the five Republican appointees side with the president’s position in the Census case, Department of Commerce v. New York, and did the four Democratic appointees reject that position?

I take on those questions in this Foreword to the third edition of the Supreme Court Review Journal of the American Constitution Society. Overall, I conclude that the past Term rebutted the president’s claim more than it validated it. I also conclude, however, that one term does not a reputation make, especially when the term is a transitional one—which the October 2018 Term likely was. The big question in the years ahead will be what the Court is transitioning to.

Keywords: Supreme Court, judicial partisanship, judicial appointees