Back when I was a reporter covering the Supreme Court in the early 2000s, journalists in the nation’s capital had begun routinely to identify judges by the presidents who appointed them. I argued vigorously against this approach. The practice was reductive and corrosive, I would say. It implied to readers that a given judge was doing politics rather than law, a serious accusation, and in most cases an unfair one. To the extent that journalism plays a role in civics education, as I believe it does, it seemed to me that portraying the legal system in such a misleading way amounted to journalistic malpractice.
Was I naïve back then? I don’t think so. The most liberal justice on the Supreme Court at that time was John Paul Stevens, appointed by a Republican president, Gerald Ford. The most prominent liberal justices of the previous half-century, from Earl Warren to Harry Blackmun to David Souter, had been Republican appointees, often to the dismay of the presidents who chose them. It was Justice Sandra Day O’Connor, named to the Supreme Court by President Ronald Reagan, who wrote in one of the early post-Sept. 11 decisions during the George W. Bush presidency that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” Beyond the Supreme Court, there were plenty of judges named by presidents of both parties whose rulings had no obvious political valence.
The debate remained unresolved by the time I left daily journalism. Watching from the outside, I saw that my former colleagues were reserving political identifications for instances where the nature and result of a case made the identification relevant. That was the right resolution, it seemed to me. Judges kept behaving in ways that transcended labels. To cite one example, Richard Posner, a libertarian Reagan appointee, led the Chicago-based appeals court on which he served to the forefront of judicial support for same-sex marriage and against the imposition of regulations on abortion providers that were not grounded in medical evidence.
Then something began to change: not the journalistic resolve but the reality in the country’s courts as the culture wars grew hotter and judges, by way of their opinions, began to sort themselves into ideological camps. This was apparent during the Covid-19 pandemic. Democratic-appointed judges tended to defer to government decisions about the kinds of restrictions to impose while Republican appointees were more likely to view restrictions as assaults on individual liberty.
This was especially true when it came to limits on gatherings for religious worship. In 2022, Zalman Rothschild, a scholar of the Constitution’s religion clauses who is now an assistant professor at the Cardozo School of Law in New York, published a study of more than 100 challenges by religious plaintiffs to such restrictions. Not a single Democratic-appointed judge voted in support of the religious plaintiffs, while two-thirds of Republican-appointed judges found the limits in violation of the First Amendment’s free exercise clause. Among judges appointed by President Donald Trump, the figure was 82 percent.
There is also a growing partisan divide among judges over the Second Amendment, as documented in an article published online in The Duke Law Journal this year. The three authors studied more than 3,000 decisions involving gun rights. By 2022 and 2023, Republican-appointed judges supported Second Amendment claims twice as often as Democratic appointees, in 36 percent of the cases compared with 17 percent.
