Lee Epstein

First Page


Last Page


Document Type



Just as the American public is politically polarized, so too is the U.S. Supreme Court. More than ever before, a clear alignment exists between the Justices’ partisanship and their ideological leanings (known as “partisan sorting”). Disapproval of opposing-party identifiers also appears to have intensified (“partisan antipathy”). This Article offers evidence of both forms of polarization. It shows that partisan sorting has resulted in wide gaps in voting between Republican and Democratic appointees; and it supplies data on “us-against-them” judging in the form of increasing antipathy toward opposite-partisan presidents. Taken collectively, the data point not to law “all the way down,” as Justice Elena Kagan once asserted, but to partisanship all the way down. Proposals to curb partisan judging often call on Congress and the President to act. Considering political gridlock in and between the elected branches, these calls seem unrealistic; they also fail to account for the politicians’ incentives to preserve a polarized Court. The implication here is that if change is to occur, it is likely to come from the actors who have the most to gain from de-politicizing the Court: the Justices themselves. Bits of evidence suggest that (some of) the Justices understand the need for self-adjustment.