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Supreme Court Standing Slips as Politics Creeps Onto the Bench

U.S. News & World Report logo U.S. News & World Report 7/1/2022 Susan Milligan
WASHINGTON, DC - APRIL 23: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Photo by Erin Schaff-Pool/Getty Images) © (Photo by Erin Schaff-Pool/Getty Images) WASHINGTON, DC - APRIL 23: Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021. Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Photo by Erin Schaff-Pool/Getty Images)

There's something calculatingly reassuring about the matching black robes donned by members of the Supreme Court. The jurists may have come from different backgrounds and been appointed by presidents of different parties and ideologies. In more recent decades, the high court has featured a more diverse mix of gender, religion, race and ethnicity. But the robe serves as an equalizing uniform, a simple garb meant to communicate the clear standards set by the oaths Supreme Court justices must take to defend the Constitution against foreign and domestic enemies and to dispense justice without regard to wealth or power.

The robes are still on, but as far as much of the public is concerned, the image of the high court as a respected and legitimate arbiter of national disputes is fading away or gone. In several major rulings near the end of its term, the Supreme Court moved dramatically to the right – far more so than the electorate. Their rulings in particular expanding gun rights and enabling abortion bans are out of step with American public opinion on the topics. And an announcement Thursday that the high court will consider a case next session that could give state legislatures the right to overturn presidential election results in their states alarmed voting rights advocates.

Meanwhile, the members of the court itself are contributing to distrust by at least part of the electorate. One justice is there because of an unprecedented refusal by Senate Republicans to allow a Democratic president to fill a vacancy. Another's wife is under scrutiny amid accusations that she participated in planning for the Jan. 6 insurrection – an issue that may well come before the high court.

The chief justice, John Roberts, is finding himself exactly where legal experts and former high court clerks said he did not want to be, with his legacy forever defined as head of the court that took away a 49-year precedent guaranteeing abortion rights. Instead, it is the hard-core conservatives of the court – such as Samuel Alito and Clarence Thomas – who are emboldened and leading the direction of the court, analysts say.

"Views of the court have plummeted. And in some ways, the court has done itself no favors in terms of legitimacy," says Sam Erman, a USC Gould School of Law professor who clerked for Supreme Court Justices John Paul Stevens and Anthony Kennedy.

Research shows that courts rarely get out of step with public opinion, and "most justices and the court as a whole have been cognizant of the need to preserve their legitimacy and their stature, and not get too far over their skis. When the court gets too far out of step with public opinion, then it starts to look more like a political actor and it starts to undermine its legitimacy," Erman says.

The public has long taken out its frustration with the Supreme Court by demonstrating in front of the building across the street from the Capitol. That's a First Amendment right justices might respect in principle, but they are not supposed to be swayed by such pressure, legal experts note. After all, the whole point is that the court makes rulings based on its interpretation of the law – not on who will benefit or suffer from the ruling.

But increasingly, the high court has been regarded as a more political institution. The rulings themselves – and the dissents – have taken on a more defiant and personal tone. Liberals are wondering how a court could consistently rule that people have a right to carry a gun almost anywhere – but do not have the right to decide what to do with their own bodies.

That has left the court of nine lifetime appointees with approval ratings that would make even an incumbent elected official blanch. Just 25% of the public has faith in the Supreme Court – a new low, and down from 31% in 2021, according to a Gallup poll.

A strong majority (57%) of the public thinks the Supreme Court ruling reversing its 1973 Roe v. Wade decision was motivated by politics, with 36% believing the decision was driven by the law, in a recent poll by the Marist Institute for Public Opinion.

A Reuters/Ipsos poll after the Dobbs ruling undoing Roe found that 57% of Americans view the high court negatively, with 43% viewing it favorably.

"The legitimacy of democracy comes from the belief by people that the institutions are serving their stated purpose," says Robert Jones, CEO and founder of Public Religion Research Institute. "There's such a clear set of examples here, where (the court) is so wildly out of touch with where the country is – even where the religious sector is," Jones says.


Video: How the Supreme Court has moved quickly toward the right (The Washington Post)

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Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights, says there is a "pretty serious" lack of faith in the high court – a troubling situation at a time when the justices will have to adjudicate disputes among states and between the states and the federal government.

"Only when you have a Supreme Court that is not politicized do you have a court with credibility," Wiley says. "We have to acknowledge and recognize that this is a court shaped by breaking the norms. There's really no mystery why this court has lost credibility."

Some of it is merely the highly polarized world Americans now occupy, says Mike Moreland, a professor of law and religion at Villanova University and former George W. Bush White House legal adviser. Confidence in many institutions – be it the media, Congress, organized religion and big business – have taken hits, according to Gallup polling trends, so it might have been inevitable that the high court would be affected by public discontent and distrust as well, he says.

Pull Quote Enhancement : "When the court gets too far out of step with public opinion ... it starts to undermine its legitimacy."

"We're at a particularly contentious time right now around the country. Institutions broadly are going through a real crisis in legitimacy and trust," says Moreland, who is friends with Justice Amy Coney Barrett, a Donald Trump appointee.

Abortion "is the most contentious issue in American politics" now, he adds. "The court really had no way out of this except for people to be angry."

And angry they are. But while the Dobbs ruling is what sent protesters to the streets all over the country, the court's image has been tarnished – or at least viewed that way – for some time, analysts say.

The 2000 Bush v. Gore decision left a bad taste in the mouths of Democrats who saw the ruling as the court handing the presidential election to Bush. The refusal by then-Senate Majority Leader Mitch McConnell, Kentucky Republicans, to even give a hearing to Barack Obama nominee Merrick Garland when Justice Antonin Scalia died in February 2016 also upset Democrats.

Trump – whose activities on Jan. 6 are now under inquiry by a select House committee – will have an enduring impact on the high court, having appointed a third of its members.

A majority of the high court (Roberts, Alito, Coney Barrett, Brett Kavanaugh and Neil Gorsuch) was appointed by presidents (George W. Bush and Trump) who did not win the popular vote, notes Duke University Law School professor Neil Siegel.

Trump's appointees "were confirmed by a (then) Senate majority that represents a minority of the nation," since many in the GOP caucus represent small states, adds Siegel, who served as special counsel to Democratic Sen. Chris Coons of Delaware during the confirmation hearings of Coney Barrett, Kavanaugh and Justice Ketanji Brown Jackson, who was sworn into office Thursday.

"I don't think any member of the Dobbs majority views themselves as part of an institution that is greater than their own ideological, methodological and, in some cases, partisan commitments," Siegel says.

Critics disagree on how to shore up the court's credibility. Court-packing, or adding new members to the high court, is not supported by a majority of the public, and Biden has not endorsed the idea.

Restructuring the courts is another idea, Erman says – either by having a requirement that each party gets to nominate the same number of justices or by having a big pool of perhaps 50 justices, with five being chosen at random to rule on individual cases.

The problem – aside from the difficulty getting such ideas through Congress or with a constitutional amendment – is that the very efforts themselves will be seen as political, thus adding to the perception that the high court is political, analysts worry.

"I fear it would destroy the court" if the size of the Supreme Court were expanded, Siegel says. "But this court seems intent on degrading its own legitimacy." For the time being, the court can take solace in the fact that Biden and Congress aren't popular either.

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