Capstone: Bybee on the Contentious Supreme Court

The annual 2020 Capstone Lecture Series continued this week with Keith Bybee, the Vice Dean of Syracuse University College of Law and Professor of Political Science at Arizona State University's Maxwell School for Citizenship and Public Affair.

The annual 2020 Capstone Lecture Series continued this week with Keith Bybee, the Vice Dean of Syracuse University College of Law and Professor of Political Science at Arizona State University’s Maxwell School for Citizenship and Public Affair. Bybee’s lecture focused on the topic of the Supreme Court during presidential campaigns and the effects of appointments of Justices by newly elected presidents. 

Bybee began by discussing the rising issue of partisanship in the Court. He emphasized that since presidents have the opportunity to appoint members of the court, they often use their power to appoint Justices that are likely to rule according to the President’s preferences. However, Bybee argued that the Court is not politically driven, referencing a quote by Chief Justice John Roberts, who has famously  declared that personal opinion and political ideology do not affect Court decisions.

Bybee then moved on to explain the significance of each vote in the Court. He explained that since there are only nine members in the Court, and because the Court decides based on majority rule, five votes “can do anything around here.” Bybee brought up the Roberts Court, the time period since 2005 during which Roberts has led the Court, noting that 70 percent of their overturning decisions were made on a five to four basis. He points out that more than half of those precedent altering decisions were made with conservatives in the majority five-member block over the liberal dissenters four-member block. He also stated that this trend will likely recapitulate and accelerate over time with the recent addition of Justice Brett Kavanaugh, who will likely vote more conservatively. 

Afterwards, Bybee proceeded to address factors that led the Court to develop into what it is today. According to Bybee, the Court did not always “have a culture of contention and operate on the basis of a norm of individualism.” Since current proceedings usually end in a minimal winning coalition of just five Justices, each Justice feels that his or her opinion is valuable. However, Bybee explained that in the early days, the Court would voice its decision by issuing a single opinion without listing or recording the dissents; there was only one voice. So what was responsible for this change? Bybee stated that coming out of the 1930s, President Franklin Roosevelt had the unique opportunity to appoint nine different Justices, a total membership change in the Court. He claimed that the shift in the suppression of disagreement to “a Court of contention and individualism” was due to the unique personalities of the newly appointed Justices. “The Chief Justice at the time had a strong preference for individual expression, so he liked to hear arguments from other points of view,” Bybee said . 

Finally, Bybee touched on American’s current perception of the current state of the Court. To explore this topic, Bybee highlighted a Pew Charitable Survey that showed a 75 percent and 49 percent approval rating of the Court from Republicans and Democrats, respectively, denoting a 26 percent gap, the largest ever in history. While Bybee said that it is good that many Americans understand and recognize the five-four majority voting system in the Court, the gap also demonstrates a rising divide in partisanship.

To close his lecture, Bybee touched on the fact political polarization is becoming an increasingly alarming issue. He feels that nowadays, the media is more worried about “who won” or “who lost” when it comes to Court rulings, rather than the impact it will have on United States citizens or how the verdict came to be. 

Elaine Wang ’20 reflected, “Bybee’s lecture was interesting because he traced the evolution of the Court since the early 19th century. It was really informative to learn about the shift from unanimous decisions with unified, co-written opinions to the individualist approach that is taken today where each Justice publicly voices their own opinions.”

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