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
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