Politicized Battles: How Vacancies and Partisanship Influence Support for the Supreme Court

• Author: Miles T. Armaly,Elizabeth A. Lane
• DOI: http://doi.org/10.1177/1532673X211064299
• Published date: 01 January 2023
• Date: 01 January 2023
• Subject Matter: Articles

Article

American Politics Research

2023, Vol. 51(1) 23–36

© The Author(s) 2022

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DOI: 10.1177/1532673X211064299

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Politicized Battles: How Vacancies and

Partisanship Influence Support for the

Supreme Court

Miles T. Armaly

1

and Elizabeth A. Lane

2



Abstract

Supreme Court vacancies are now characterized by great partisan efforts to confirm—or impede —the nomination. Amid a

politicized vacancy before the 2020 election, there was cause to question the conclusion that these vacancies do not harm

the judiciary in the public’s eyes. We utilize panel data collected before and after Justice Ginsburg’s death to investigate the

effects of the vacancy and partisan posturing to fill it. We find that the battle over the vacancy yielded decr eases in diffuse

support among Democrats, particularly among those who read a story about Senate Republicans’willingness to fill an

election-year vacancy after refusing to in 2016. Support for federal judicial elections decreased across survey waves, but

only among certain subsets of respondents. Finally, belief that one’s preferred 2020 candidate would nominate the next

justice significantly influenced support for curbing. Elected branch politics appear capable of influencing the mass public’s

level of support for the Court.

Keywords

Supreme Court, legitimacy, Court-curbing, vacancies, confirmations

When then-Senate Majority Leader Mitch McConnell sty-

mied President Barack Obama’s nomination of Merrick

Garland to the Supreme Court in 2016, many commentators

feared for the legitimacy of the institution (e.g., Millhiser,

2016). Even the Chief Justice expressed consternation over

the Court as a partisan football (Greenhouse, 2017). Despite

the open politicking to fill Justice Scalia’s seat, institutional

legitimacy seemed to remain resolute. In fact, the changes to

legitimacy appear to have been increases in positive

evaluations of the Court, largely because legitimizing

symbols of the judiciary appear to protect it from external

politicization (Armaly, 2018b). While the Supreme Court

emerged from the Garland–Gorsuch situation unblem-

ished, extreme politicization of the judiciary was not

isolated to the Scalia vacancy. The very next Court

opening—Justice Kennedy’s retirement—was followed

by the intense, controversial, and legitimacy-influencing

confirmation of Brett Kavanaugh (Carrington & French,

Forthcoming). And, in the midst of one of the most po-

larizing presidential elections in American history,Justice

Ginsburg’s death in September 2020 demonstrated Senate

Republicans’eagerness to schedule hearings for her re-

placement, despite having suggested 4 years prior that

nominations in an election year are inappropriate. In light

of the politicizing of the staffing of the Court, the question

of whether harm may befall the judiciary when the elected

branches politicize the Court during a vacancy is far from

settled.

In this paper, we utilize panel data collected 2 weeks

before and 1 week after Ginsburg’s death (though before

Barrett’s nomination) to determine whether, and how, an

extremely politicized and polarized nomination can influence

mass attitudes toward the Supreme Court. We randomize

exposure to information prominent in the news in the second

wave of our panel study to ask whether Ginsburg’s death and

the subsequent vacancy influence perceptions of Supreme

Court legitimacy and support for a specific variant of broad

Court-curbing (see Bartels & Johnston, 2020): Federal ju-

dicial elections (see Davis, 2005). Additionally, we consider

how electoral support in the 2020 election, as well as ex-

pectations regarding the filling of the Supreme Court vacancy,

bears on attitudes toward the institution.

We find that individuals reacted to the vacancy in terms of

how they benefited from it, politically. Specifically, political

1

University of Mississippi, MS, USA

2

Louisiana State University, LA, USA

Corresponding Author:

Elizabeth A. Lane, Political Science, Louisiana State University, 205 Stubbs

Hall, Baton Rouge, LA 70803-2804, USA.

Email: elane8@lsu.edu