Listen to Zooming In at The UnPopulist in your favorite podcast app: Apple Podcasts | Spotify | Google Podcasts | RSSAaron Ross Powell: Welcome to Zooming In, a project of The UnPopulist. I’m Aaron Ross Powell. My guest today is George Mason University law professor and B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute, Ilya Somin. Ilya recently wrote an article for The UnPopulist about the state of the Supreme Court—whether it’s become more politicized than it used to be, and why many of the proposals to fix it could be counterproductive, even dangerously so.A transcript of today’s podcast appears below. It has been edited for flow and clarity.Aaron Ross Powell: Is the Supreme Court more politicized than it used to be?Ilya Somin: I think it depends on your definition of politicization. I think it is more politicized in the sense that there's more polarization between Republican-appointed justices and Democratic-appointed ones than there was say 30, 40, 50 years ago. On the other hand, I don't think it's more politicized in the sense that justices’ political views play a bigger role in their decisions than they did in the past. I think there's little evidence to support that. While the justices are not now, nor have they ever been completely free of political bias, I think they are much less biased than other governmental institutions are. That enables them to play a more neutral role than we would have otherwise if we weaken judicial power.“I think it is more politicized in the sense that there's more polarization between Republican-appointed justices and Democratic-appointed ones than there was say 30, 40, 50 years ago. On the other hand, I don't think it's more politicized in the sense that justices’ political views play a bigger role in their decisions than they did in the past.”Aaron Ross Powell: One of the things that frustrates me about the way that a lot of people talk about the Supreme Court and its decisions is there's this sense, I think from both sides, but you see it a lot from the left that justices make a decision on what they think the right answer or the best answer or the answer they'd prefer for a given case is based on their partisan political priors. Like, I'm a conservative, therefore I want to restrict immigration. Then when there's a case in front of them about immigration, they just reason backwards from that.It's like a disingenuous legal argument effectively when in fact, as we both know, these justices usually come in with a coherent and developed jurisprudential perspective and philosophy. They're originalists or textualists or living Constitution people, and they're often fairly upfront about what has political—it is more likely if you are a progressive that you're going to find living constitutional perspectives more persuasive than strict constructionist perspectives, but they're reasoning from that articulated theory.When you talk about them becoming more politicized in the first way—the politics of the justices are diverging, are we seeing a growing divergence in the underlying judicial philosophies? The living constitutionalists are becoming more extreme in their living constitutionalism—more hardcore—and the textualists are becoming more textualist in theirs?Ilya Somin: I don't think that's necessarily what's happening. I think it's simply that what we have is a greater divergence within the Supreme Court on both political ideology and also some issues of legal methodology as well. That translates into a bigger gap between the predicted votes of a Republican appointee versus a Democratic appointee than would have existed 40 or 50 years ago. Such a divergence is not completely unprecedented in American history, but it is different from what you saw in the immediate post-World War II era where, say, from the late 1940s until perhaps the 1970s or the '80s, differences between Democratic and Republican appointees were much more modest.It's not because the justices of that er