Policymaking, Polarization, and the Judiciary

​

---

By: Audrey Pan
Oulai "Audrey" Pan is a first-year student at the University of Pennsylvania's College of Arts and Sciences who plans to study political science and economics.

There are few who would deny that America is experiencing one of its most polarized periods yet. Common-sense public health measures such as mask-wearing have become widely debated amid a pandemic. Online interest in conspiracy theories soared by 651 percent just last year. Most disturbingly, a third of voters believe that the results of the most recent presidential election were fraudulent despite having no evidence. How did America arrive at such a polarized state? And how does polarization affect America’s governing apparatus beyond its day-to-day socioeconomic penetration?
​

To answer these questions, we must first understand what polarization is. In general terms, political polarization refers to increases in party extremity; in other words, the growing disagreement between various political parties [4].

There are three main forms of polarization: ideological, affective, and elite.

Ideological polarization refers to the growing differences in political beliefs, or the widening of the political spectrum, and is the most general form of polarization. Affective, or social, polarization refers to partisans’ intensifying disdain for people of opposing beliefs; it is correlated, but not dependent on ideological polarization. The two aforementioned forms of polarization are also often grouped together to be referred to as mass polarization. Meanwhile, elite polarization denotes the increasing partisan divides within the government, typically between Congress people of different parties [5].

It is hard to pinpoint the exact causes of political polarization in the United States. That said, polarization can generally be traced to prolonged social sorting and news divisions.

During the past several decades, people have increasingly sorted themselves into politically homogenous groups that align with their social identities such as race, ethnicity, geographic location, and income level [6]. As a result, intergroup bias is a significant cause of polarization. People are inclined to favor the beliefs of those within their in-groups—groups to which one belongs—and distrust beliefs of out-group members [7].

When an individual is part of numerous in-groups that do not overlap, that means that there is a greater variety of people that they would consider to be within their in-groups. For example, someone can be a middle class doctor while also being a member of a religion. In that case, they’d be part of both the middle class in-group as well as their religious in-group, but people in their socioeconomic in-group may be of different religions and people in their religious in-group may be of different socio-economic classes, thus creating cross-cutting identities. With more cross-cutting in-groups, the chances of an individual seeing another as a complete out-group member is slim and there would be a lesser probability for individual conflicts and, by proxy, group conflicts. However, when social sorting aligned social and partisan groups, individuals no longer have as many overlapping identities. This process creates social echo chambers with the ideal conditions for political self-radicalization.

This effect is only further exacerbated by news divisions. According to a Hill-HarrisX poll, an overwhelming majority of Americans in both parties believe that news reporting fuels partisan division, and they are partially correct [8]. It is not merely that media outlets are drifting to either side of the political spectrum but instead that people are choosing to consume different news. 

White House correspondent John Yang interviewed a Democrat, a Republican, and an Independent, all in the Phoenix, Arizona area, and found that they consume vastly different news. The Democrat reported reading CNN and the New York Times, the Republican favored Fox News and Laura Ingraham, while the Independent relied on his Twitter feed, which is comprised of a mix of sources. Yang’s findings are a microcosm of a broader trend in which the electorate “can choose from personalized news sources that not only serves to inform them, but also reinforces their world view” [9].

As the masses polarize, politicians follow, especially since the loudest voices are typically those on the far left or right of the political spectrum and not the average moderate voter, emboldening politicians to take on more extreme ideological positions. In fact, DW-NOMINATE scores—used to measure the difference in ideology within Congress—from the past century reveal that the level of current partisan conflict is the highest it has been since the 1920s [10].

As a result of the rise in elite polarization, Congress is more deadlocked than ever, and compromises are no longer universally praised by the electorate [11]. Policymakers recognize this dysfunction. For example, Senator Ben Sasse of Nebraska declared that “Congress is weaker than it has been in decades,” a sentiment that was echoed by Senator Angus King of Maine, who compared the Senate to “a high school football team that hasn’t won a game in five years” [12]. 

The consequences of such partisanship have spilt over to federal judicial nominations. Though political ideology had long been a factor in presidents’ judicial selection, presidents have only begun to emphasize the ideological reliability of potential judges during the Clinton administration, after Reagon appointed two conservative justices to the Supreme Court who became swing votes [13].

This shift is accompanied by a polarization of the Senate confirmation process. In the 1980s and 1990s, Supreme Court Justices Antonin Scalia and Ruth Bader Ginsberg received votes from almost every Senator despite being ideological opposites. Two decades later, justices are now confirmed with nearly perfect party line votes [14]. Such polarization is also reflected in lower court nominations. For instance, after Republicans gained control of the Senate in 2014, they blocked nearly 100 of Obama’s nominations, leaving 105 vacant seats on the federal judiciary when Trump entered office [15].

Not only did polarization transform the judicial nomination process, but it also changed how the courts decided controversial cases. Take the Supreme Court, for example; the percentage of decisions with only a one vote margin have significantly increased in the past decade along with the number of unanimous opinions [16]. In other words, justices of the same caucus have increasingly similar ideological and legal positions while the liberal and conservative caucuses are moving apart.

All of these impacts have severely undermined the government’s credibility. As voters witnessed numerous threats of government shutdowns (and actual shutdowns) and delays on passing critical bills such as COVID-19 relief this past spring, many have lost faith in Congress’s ability to solve real-world problems [17]. The judiciary too, is increasingly viewed as a partisan body that no longer fulfills its role as a check on executive and legislative power [18].

Ultimately, polarization is a phenomenon that has ebbed and flowed since the dawn of American democracy, with no foreseeable end. That said, it is not irreparable. Perhaps the first steps we can take as individuals to depolarize is to recognize our own biases, reach beyond ideologically homogeneous bubbles, and elect leaders who are willing to do the same. Only then can we begin to remove our partisan binds and bridge these debilitating divides.



[1] Padilla, Mariel. “Who's Wearing a Mask? Women, Democrats and City Dwellers.” The New York Times, June 2, 2020. https://www.nytimes.com/2020/06/02/health/coronavirus-face-masks-surveys.html. 

[2] Francescani, Chris. “QAnon: What Is It and How Did We Get Here?” ABC News, August 20, 2020. https://abcnews.go.com/Politics/qanon-/story?id=72350231. 

[3] Greenwood, Max. “One-Third of Americans Believe Biden Won Because of Voter Fraud: Poll.” The Hill, June 21, 2021. https://thehill.com/homenews/campaign/559402-one-third-of-americans-believe-biden-won-because-of-voter-fraud-poll. 

[4] “Political Polarization.” Pew Research Center, January 27, 2021. https://www.pewresearch.org/topics/political-polarization/.

[5] Banda, Kevin K., and John Cluverius. “Elite Polarization, Party Extremity, and Affective Polarization.” Electoral Studies 56 (2018): 90–101. https://doi.org/10.1016/j.electstud.2018.09.009. 

[6] Mason, Lilliana. ​Uncivil Agreement: How Politics Became Our Identity.​ Chicago, IL: The University of Chicago Press, 2018.

[7] Klein, Ezra. ​Why We're Polarized.​ Avid Reader Press/Simon & Schuster, 2020.

[8] Bonn, Tess. “Poll: Overwhelming Majority Say News Media Making Us More Politically Divided.” The Hill, January 21, 2020. https://thehill.com/hilltv/rising/478833-poll-overwhelming-majority-say-news-media-making-us-more-politically-divided. 

[9] “How Politically Polarized Media Is Driving Our Alternative Realities.” Public Broadcasting Service, April 21, 2017. http://www.pbs.org/newshour/show/politically-polarized-media-driving-alternative-realities. 

[10] McCarty, Nolan. “The Consequences of Partisan Polarization in the United States.” Berkeley Haas, November 2018. https://haas.berkeley.edu/wp-content/uploads/McCarty.doc. 

[11] Calmes, Jackie. “Deficit Reduction Plan Draws Scorn from Left and Right.” The New York Times, November 12, 2010. http://www.nytimes.com/2010/11/12/us/politics/12fiscal.html. 

[12] Stolberg, Sheryl, and Nicholas Fandos. “As Gridlock Deepens in Congress, Only Gloom Is Bipartisan.” The New York Times, January 27, 2018. http://www.nytimes.com/2018/01/27/us/politics/congress-dysfunction-conspiracies-trump.html.

[13] Hasen, Richard L. “Polarization and the Judiciary.” Annual Review of Political Science 22, no. 1 (2019): 261–76. https://doi.org/10.1146/annurev-polisci-051317-125141.

[14] Ibid.

[15] Greenberg, Jon. “Fact-Check: Why Barack Obama Failed to Fill over 100 Judgeships.” PolitiFact, October 2, 2020. https://www.politifact.com/factchecks/2020/oct/02/donald-trump/fact-check-why-barack-obama-failed-fill-over-100-j/.

[16] Hasen, “Polarization and the Judiciary.”

[17] Enten, Harry. “The Government Shutdown Effect: Big in the Short Term, Small after That.” FiveThirtyEight, January 20, 2018. https://fivethirtyeight.com/features/the-government-shutdown-effect-big-in-the-short-term-small-after-that/. 

[18] Liptak, Adam. “Supreme Court Says Judges Are Above Politics. It May Hear a Case Testing That View.” The New York Times, September 16, 2019. https://www.nytimes.com/2019/09/16/us/politics/supreme-court-judges-partisanship.html.
​
​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.