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The University of Minnesota and its famed basketball coach, Tubby Smith, did not owe a duty of care to prospective assistant coach Jimmy Williams during employment negotiations in 2007, the Supreme Court held in reversing a $1 million damage award against Smith and the university.

Party polarization and the courts

Partisan disagreement across the country has produced congressional polarization and political stalemates or one-party rule in many statehouses. Yet one facet of this polarization long ignored but becoming increasingly obvious is how this partisan disagreement is impacting the courts and how they rule. The U.S. Supreme Court term that ended in June is just one example of how such polarization too is undermining confidence in the judiciary and turning that branch of the government into just another partisan body torn by politics.

There is no question that Congress is the most polarized is has been since perhaps the Civil War. At one time the Republicans and Democrats were less ideological in nature, with both parties composed of members who ran the gambit from conservative to liberal.  Political scientists Thomas Mann and Norman Ornstein’s “It’s Worse than it Looks: How the American Constitutional System Collided with the New Politics of Extremism,” describes the polarization in America, with congressional Republicans having moved further to the right than Democrats. Similarly, in a June 12 Pew Research Center Report “Political Polarization in the American Republic” it found that: “Today, 92 percent of Republicans are to the right of the median Democrat, and 94 percent of Democrats are to the left of the median Republican.”

Taken together, the studies describe the two parties as increasingly captured by extremists, neither of whom seem willing to compromise. Evidence of that congressional polarization are the number of straight party line votes, the failure to pass legislation and work with President Barack Obama, and the government shutdown from a few years ago.

The polarization does not remain at the national level. Across the country one sees the pejorative map of red and blue states. Increasingly states are turning into one party rule divided by a cluster of issues including gay marriage, abortion, taxes, voter identification and fraud, and the Affordable Care Act. Red Republican states, for example, have generally refused to implement Obamacare, leaving it up to the federal government to run the health care exchanges, and blue Democrat states are legalizing gay marriage.

Nationally, Republicans and Democrats differ on a host of policies or issues. House Republicans have voted to repeal Obamacare over 40 times. They want to sue or impeach the president.  Republicans among the general public strongly agree and disapprove of the president’s performance, with Democrats taking a clear contrary position. Minnesota is a perfect example of this polarization. Look at critical state legislative votes in the last two legislative sessions on issues ranging from the marriage and elections amendment, legalization of gay marriage, raising the minimum wage, anti-bullying legislation, and taxes. All of these votes were essentially straight party line votes.

The causes for the polarization are many. Some are generational and demographic. Some are rooted in reactions to forces from the 1960s and ’70s, including the ascension of Barry Goldwater in the Republican Party, Nixon and Watergate, and the cultural wars from that era. Bill Bishop’s “The Big Sort” describes how Americans are geographically sorting themselves out politically, overlaying with gerrymandering to produce fewer and fewer competitive congressional districts. Whatever the final reasons it is clear:  America is a segregated nation — separate and equal politically.

While this polarization is not good, there was one safe haven or safety value in all of this — the courts. One may debate the wisdom of the judiciary stepping into political controversies, that tendency has been a trait of the American political system from the start. As Alexis DeTocqueville once noted: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” At some point many of the major controversies of the day have been addressed by the Supreme and lower federal and state courts. At a time of political deadlock or partisan divide judicial intervention may be necessary simply to make decisions and resolve controversies. And in general the courts did a good job, untouched or torn by partisan disagreement. But that too is no longer the case.

Look at the U.S. Supreme Court under Justice John Roberts. In term that just ended 60 percent of the 5-4 decisions broke along ideological lines, with the conservatives winning two-thirds of the ideological votes. And this is down from previous terms when the ideological voting was even stronger. There are clear voting blocs among Justices who consistently seem to vote in ways predicable based on the appointing president. At one time presidential appointment was not a good an indicator of a Justice’s voting behavior. Eisenhower appointed Earl Warren and William Brennan who turned out to be liberals, and John Kennedy appointed Byron White, more conservative than liberal. But now, political scientists and court scholars conclude that for the first time in history all five of the Republican-appointed Justices have voting records more conservative than the four Democratic-appointed Justices.  Look at recent votes on campaign contribution limits, birth control and the religious rights of corporations, union rights, and prayer before government meetings — all of these cases broke along partisan lines. The Court is polarized.

But it does not stop with the Supreme Court. Recent decisions by the D.C. ad Fourth Circuit Court of Appeals regarding health care insurance subsidies under the Affordable Care Act broke along partisan lines. In Wisconsin, a recent state Supreme Court decision upholding it’s voter identification law too broke along partisan lines. Similar stories could be recounted across the country. It no longer appears that judges are acting on principle and ruling on the merits of the law; instead they look and act like their partisan congressional and legislative (and presidential and gubernatorial) kin.

So what is to be done? Some see the politicization residing in how judges are selected. At the state level the fear is that partisan or competitive judicial elections will transform courts in places like in Minnesota into nothing more than another political office. Yet in the more one decade since a U.S. Supreme Court case created the potential for that reality, it has not happened, even though that is the case in other nearby states such as Iowa and Wisconsin where partisanship and money have changed the courts.

If judicial elections are not able to resist politicization, appointment systems do not necessarily work any better — just look at the federal courts. All forms of judicial selection have their flaws, none seems more or less likely to produce a partisan court system. Instead, the courts are now captured by the same party and partisan forces that have infected the other branches of government. They have become a casualty of America’s increasingly polarized political environment.

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