Instead of depoliticizing the court with his first pick, Biden has repoliticized it. During the 2020 campaign, he promised to put a Black woman on the Supreme Court in order to win an essential endorsement from South Carolina Democratic Rep. Jim Clyburn. Reagan did a similar thing in 1980, when he promised to appoint a woman to the Supreme Court — which he did. Expanding the menu of potential justices from white men has been a good thing, of course. But making it a campaign promise amplifies the political character of appointments.

Evidence of the Supreme Court’s political predispositions comes several times a session as the justices vote in predictable, party-line fashion. Even so, the justices still like to tout the strict impartiality of the court and their allegiance to the rule of law. Remember Chief Justice John Roberts’ insistence at his confirmation hearing that his job would be “to call balls and strikes, and not to pitch or bat”? Not everybody bought that explanation of the job. Justice Sotomayor later quipped, in a way that undermines her fretting about the stench of politics invading the court, that “different umpires have different strike zones.” If we interpret the justices’ different strike zones to be another way to acknowledge political differences, Sotomayor seems to be saying many court decisions rest on a bedrock of politics.