The Supreme Court lost the benefit of the doubt
For years, the Supreme Court has been pretty good at presenting itself as residing in that first, idealistic Washington. Its members, after all, served for life, unaffected by the vagaries of public opinion and immune to the need to raise campaign funds. It heard the lawyers’ arguments, assessed those arguments and rendered an opinion.
This is the perception that Chief Justice John G. Roberts Jr. has been diligent in defending: that his court retains its impartiality. Even as the increasingly robust conservative majority broadened its goals, Roberts insisted that the court acted only within its traditional, rigid — conservative, one might say — boundaries. But that argument has become increasingly difficult to defend, and Americans are increasingly likely to reject it.
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Over the weekend, The New York Times revealed that the May leak of a draft notice in Dobbs v. Jackson Women’s Health Organizationthe decision that overturned Roe vs. Wade, was not the first such leak of a result. In 2014, a couple had dinner with Judge Samuel Alito, the newspaper reported, during which they were apparently told the judge would write an opinion in Burwell v. Hobby Lobby Stores favoring Hobby Lobby. This was passed on to a conservative activist named Rob Schenck, and was reinforced by contemporary emails. Alito denied that he or his wife leaked the opinion beforehand.
Alito, also the author of the leak Dobbs opinion, was almost as fervent as Roberts in defending the impartiality of the court. He attacked members of the media who are critical of the court’s operation and loftily opposed questions about the court’s integrity and politicization. He is also the second most conservative member of the court.
The most conservative is Justice Clarence Thomas, who has been at the center of another whirlwind of questions. His wife, Ginni Thomas, was involved in efforts to overturn the 2020 election, including attending the rally outside the White House on January 6, 2021. Thomas was also the only one to vote in favor of protecting the records of the Trump White House against scrutiny by the House Select Committee investigating the riot at the United States Capitol that day.
The indirect link to activism revealed by Ginni Thomas’ engagement echoes what is perhaps the most important part of The Times report on Alito’s 2014 activity. The couple he was dining with were donors recruited by Schenck specifically to engage Supreme Court justices in a social activity.
He “enlisted wealthy donors like Mrs. Wright and her husband, Donald” – the couple at that dinner – “encouraging them to invite some of the judges to meals, at their vacation homes or at private clubs”, reported the Times. “He advised allies to contribute money to the Supreme Court Historical Society and then mingle with the justices while on duty.”
Judges qualified as “subject” to outreach? Alito, Thomas and the late Antonin Scalia.
Again, this is not the perception of the Supreme Court that Roberts would like the public to have. None of this means that the intertwining of activists and judges is new, since it is not. It is, however, new that a judge is at the center of two reported leaks, that another judge’s spouse worked to reject the results of a presidential election and, of course, that this overlaps with these judges being part of a majority so actively reshaping precedent and reinforcing an ideological realm.
The problem is not that the court is conservative. The problem is that the court seems to have become entangled in the politics above which it claims to sit – turning the lack of accountability that was intended to preserve the objectivity of the court into a defensive moat allowing judges to behave as they see fit. seems.
Earlier this year, Gallup reported that public trust in the court had hit a new low in half a century of measurement. This was largely because Democrats viewed the court with new skepticism, given the leak of the Dobbs decision and the measurable shift to the right of the court.
What’s interesting about the Gallup data, however, is that perceptions of the court have generally tracked with confidence in the presidency. The percentage of Americans who said they had “a lot” or “a lot” of trust in everyone was in the 40s for much of the 1980s and 1990s. By the second term of the George W. Bush administration, both were in their thirties. By 2022, each had fallen into their twenties.
Congress, meanwhile, has been a teenager for more than a decade.
But while perceptions of the court and the White House have moved in tandem, the triggers for the movement vary. Opinions about the presidency are heavily influenced by partisanship, with members of an incumbent president’s party having a great deal of faith in that presidency and members of the other party having very little. The result is a wide partisan divide.
There is much less of a gap in the views of the court, as there is with Congress. Republicans and Democrats generally dislike Congress, in part because there are opposition party leaders whom each finds objectionable. But opinions on the tribunal have been far less influenced by partisanship – through 2022. The party gap is more than 25 points at this point, with Republicans far more positive than Democrats about the tribunal.
It is certainly possible that perceptions of the court will rebound and be colored less vigorously by partisanship. But, unlike the presidency or even Congress, there is no election in which the court can be reshaped. The elected Democrats have called for the court to implement rules of ethics and behavior that, thanks in part to Washington textbook perceptions of the court, do not exist to any solid extent.
That, of course, wouldn’t change frustrations about how the court decides — which is the main reason for Democratic skepticism. Conservative activists like Schenck got what they wanted from the court. Donald Trump did the same, seeking to deliver for his conservative base. There was a specific and forceful effort to build a court that would release views favorable to the political right. This court has arrived – and is cemented in place until the judges retire or die.
And that, in itself, is why the court’s efforts to portray themselves as above the fray won’t work. The forces that shape the court have pushed to make it one that not be above the fray but instead be responsive to the cultural moment. To all appearances, they succeeded.