It’s fine for the nine to have an opinion on Wegman’s vs. Trader Joe’s or pepperoni vs. pineapple, but one would hope that the arbiters of the most critical issues facing our nation wouldn’t be choosing “Republican” or “Democrat” on their voter registrations.
Even if the public has a sense of what liberal Justice Ruth Bader Ginsburg or President Donald Trump-appointed Justice Neil Gorsuch may think about a certain topic, registering as a partisan, as each has, is a discrete choice that ascribes political motivations onto a purportedly apolitical body.
At a time when justices’ associations are coming under greater scrutiny, they should do more to show that they’re engaged in something different from politicians. Renouncing party affiliation would be one way to do that.
Where Do the Justices Vote?
Ahead of the kickoff to the 2020 voting season, my team and I at Fix the Court looked into which justices are eligible to vote and where and if they’ve registered with a party.
We started at the top. Chief Justice John Roberts, along with Justice Brett Kavanaugh, is known to live just north of the D.C.-Maryland border in Montgomery County, Md. We spoke with the counsel of the county’s board of elections, and he confirmed that Roberts and his wife, Jane, and Kavanaugh are all “confidential voters,” meaning their registration data may remain private. So it’s unclear if those three are registered with a party. A public records search shows that Kavanaugh’s wife Ashley is a registered Republican.
Back in D.C., Justices Ruth Bader Ginsburg and Elena Kagan are both registered Democrats. Justice Stephen Breyer still votes in Cambridge, Mass., where he and his wife have a home. He, too, is a registered Democrat. Justice Sonia Sotomayor still votes in her home state of New York but has not enrolled with a party.
Meanwhile, public records in Boulder, Colo., show that Gorsuch was a registered Republican during the decade he lived there before returning to D.C. in 2017 for his Supreme Court appointment. Retired Justice David Souter maintained his Republican registration when he moved from one New Hampshire town to another months after his 2009 retirement from the high court. On Feb. 11, he will be the first justice, active or retired, eligible to cast a ballot in a 2020 primary.
We were unable to obtain the voter records of retired Justice Anthony Kennedy, Justices Clarence Thomas and Samuel Alito, and the current registration of Gorsuch due to prohibition on accessing voter data in Virginia, which is where it is believed all four maintain residences. We had the same issue with obtaining voter data for retired Justice Sandra Day O’Connor, who lives in Arizona.
Follow Sotomayor’s Lead, Forgo Registering With a Party
The takeaway is this: justices are well within ethical bounds to register to vote and to cast a ballot. But due to their positions, they’re expected not to canvass for candidates, donate to candidates or political action committees, or speak openly about politics (and they’re compelled to apologize when they do).
Taken a step further, those aligned with a party would do well to follow Sotomayor’s lead and not register as Republicans or Democrats.
Breyer could vote in either party’s primary in Massachusetts on Super Tuesday, for example, without being registered as a Democrat, and the same goes for the four likely Virginia voters at the court, though this year’s Republican primary has been canceled. In Washington, Ginsburg and Kagan would be unable to vote in a primary without registering with a party, but that would be preferable to publicly aligning themselves with one party.
Our research comes on the heels of the recent dust-up over whether judges should be permitted to pay dues to the conservative Federalist Society or the liberal American Constitution Society. I see these issues as intertwined. Attend a FedSoc or ACS event, or vote in a general election, as a judge? Fine. Pay dues to formally associate yourself with one team or the other, or register with a party? Here people are going to question your independence.
After all, most Americans already see the high court as political. The justices don’t dispel that notion when they indicate a political party when they register to vote. Registration deadlines for the November election are approaching, but it’s not too late for the nine to go Independent—and show some independence.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Gabe Roth is executive director of Fix the Court, a nonpartisan judicial watchdog group.