Judicial Process in America

"Since the publication of the twelfth edition of Judicial Process in America in 2023, the United States has seen a great deal of uncertainty and discord, and the courts have certainly not been cut off from this turmoil. Some of the most prevalent issues surrounding the federal courts in recent years have concerned increased partisan polarization of the judiciary, the implications of President Donald Trump's success in appointing conservative judges across the federal courts, declining support for the Supreme Court by the public, and President Joe Biden's successful efforts at diversifying the federal judiciary. Partisan polarization has been increasing in the United States, including among the public and among our elected officials. Recent scholarship points to a Supreme Court that has also seen a dramatic increase in partisan polarization in recent years, "perhaps more so than ever in its history."1 This increased polarization has affected Supreme Court decision-making across many policy areas, including voting rights and campaign finance, religious liberty, and cases involving business. In other words, there is more disagreement today than there used to be in resolving campaign finance or religious liberty cases between justices appointed by Democratic versus Republican presidents.2 We are now a few years into the 63 conservative supermajority brought about by the hardball tactics utilized in appointing two of President Trump's three appointees to the Court (as we address in Chapter 6). Justice Ketanji Brown Jackson's selection in 2022 as President Biden's sole appointee to the nation's highest court, while unprecedented from the perspective of representation, did little to alter the ideological composition of the Court, given that she replaced liberal Justice Stephen Breyer. Decades of work by conservative interests and Republican political leaders are in the process of coming to fruition in expanding gun rights, empowering individual religious liberty claims over antidiscrimination policies, ending race-based affirmative action in college admissions, and limiting the power of administrative agencies, among other areas. Indeed, at the close of the 20232024 term, one longtime Court observer noted that the justices had "taken on a stunning array of major disputes and [assumed] a commanding role in shaping American society and democracy.""--