The Supreme Court’s approval rating is plummeting, its critics are more caustic and justices are feeling compelled to plead the case to the public that they are judicial philosophers, not politicians in robes.
All of this as the court embarks Oct. 4 on one of the most potentially divisive terms in years. Cases already docketed concern gun control, the separation of church and state, and the biggest showdown in decades on the future of Roe v. Wade and the constitutional right to abortion.
Meanwhile, a presidential commission studying the court is being bombarded with criticism from the left, and occasionally the right, that the justices are too political, too powerful and serve for too long.
Even those who value the court see trouble ahead.
“Not since Bush v. Gore has the public perception of the court’s legitimacy seemed so seriously threatened,” the Georgetown Supreme Court Institute’s executive director, Irv Gornstein, said last week at a preview of the court’s upcoming term.
Sen. Lisa Murkowski, R-Alaska, said she has grave concerns for the court, and government in general.
“I worry a great deal about it, because when the public begins to question and doubt the independence of this third, separate but equal branch of government, they’ve got a problem here,” she said, adding, “I think the public needs to be able to trust that the judiciary will be that independent, unbiased check” on the political branches.
A Gallup poll released last week said Americans’ opinions of the Supreme Court have dropped to a new low, with only 40 percent approving of the justices’ job performance. “At this point, less than a majority of Republicans, Democrats and independents approve of the job the court is doing,” said Gallup, which has been tracking the trend since 2000.
A recent survey by Marquette University Law School documented the same dramatic drop. Its numbers showed public approval sliding from 60 percent in July to 49 percent in September.
Those weeks are usually quiet at the court, with justices on summer recess. But in emergency decisions in August and September, the court ruled against two Biden administration initiatives, ending a nationwide eviction moratorium and reimposing an abandoned immigration policy. And in a bitter 5-to-4 split that sparked controversy and prompted congressional action, the court allowed to take effect a Texas law banning most abortions after six weeks of pregnancy, while legal challenges to it continue.
Those late summer rulings apparently came with a cost. “Whatever people might have seen as moderation on the court over the past year was followed by these three rulings, right in a row and close together, that all took a conservative tilt,” said Charles Franklin, director of the Marquette poll, in explaining the drop in approval.
In recent weeks, three justices - the newest, Amy Coney Barrett, and its most senior, conservative Clarence Thomas and liberal Stephen Breyer - have defended in speeches and interviews the court’s decision-making and independence.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett said in a speech in Kentucky, asserting that judicial philosophies, not partisan leanings, dictate the court’s rulings.
Thomas, in a speech at Notre Dame, said justices do not rule based on “personal preferences” and suggested that the nation’s leaders should not “allow others to manipulate our institutions when we don’t get the outcome that we like.”
Breyer increasingly finds himself in dissent, especially in the emergency orders that come without the court’s normal briefing and argument.
But promoting a new book that warns that restructuring the court would be seen as a partisan move imperiling the court’s authority, he has pointed out controversial areas in which liberal and conservative justices have reached agreement. He mentions upholding the Affordable Care Act for a third time, and staying out of election challenges brought by President Donald Trump and his allies.
The protestations have not had the desired effect, at least among some liberals and Democrats.
“I think these last few years have really been very dangerous and potentially devastating to the Supreme Court’s credibility because the public is seeing the court as increasingly political, and the public is right,” said Sen. Richard Blumenthal, D-Conn., who served as a Supreme Court clerk to Justice Harry Blackmun. “The statements by Thomas, Barrett, Breyer, you know, give me a break ... they are just inherently noncredible.”
Democrats remain chafed at Trump’s ability, with a push from then-Senate Majority Leader Mitch McConnell, R-Ky., to transform the Supreme Court.
McConnell refused to allow a hearing on President Barack Obama’s Supreme Court choice Merrick Garland in 2016, saying it was inappropriate in an election year. He then rushed through Barrett’s confirmation to replace the late Justice Ruth Bader Ginsburg just days before Election Day, and after voters had begun casting early ballots that denied Trump a second term.
Along with replacing Justice Anthony Kennedy, Trump nominated and McConnell’s Republican-majority Senate confirmed Barrett and Justices Neil Gorsuch and Brett Kavanaugh, overwhelmingly along party lines. That has given the court a 6-to-3 conservative majority that is likely to remain for years to come.
Some conservatives contend that questions about the court’s legitimacy are cooked up by Democrats and progressives, who they say turn every disliked decision into a call for expanding the number of justices while Democrats control the White House and Senate.
Roman Martinez, a Washington lawyer who clerked for Kavanaugh and Chief Justice John Roberts Jr., said at the Georgetown event that the “incendiary language” plays a role in public disapproval of the court.
“I do think there is a substantial campaign to delegitimize the court that has gotten some traction on the left,” said Martinez, who praised Breyer for showing “courage” by speaking out.
He contended that Senate Democrats and liberal interest groups from the beginning have attempted to brand Trump’s nominees as partisan and biased.
Those critics argued that “the reason these individuals were being put on the court was they were going to hand the election to Donald Trump, they were going to shield him from investigation and they were going to overturn Obamacare,” Martinez said.
“And none of those things came to pass.”
Of course, Trump himself was the source for some of those expectations. He said Barrett was needed so that a full court could hear litigation arising from the election, and proclaimed that the people he nominated to the high court would overturn Roe.
His transactional approach to judicial appointments was on display when Roberts chided the president for referring to a federal judge as an “Obama judge.”
“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country,” Trump tweeted at the time.
Such criticism stings, whether from the left or right, as the justices’s recent appearances have shown.
But their responses brought criticism as well. Barrett’s comments came during an appearance with McConnell at a University of Louisville center that bears the senator’s name. Rebutting charges that the court is partisan after being introduced by one of the Senate’s chief partisans - McConnell is noncommittal on whether a Republican-led Senate would take up a Supreme Court nomination from President Joe Biden - made Barrett an easy target.
McConnell will appear with Thomas next month as a keynote speaker when the Heritage Foundation holds a tribute to Thomas’s three decades on the Supreme Court.
Similar to Roberts’s criticism, Breyer has complained that the media often notes the party of the president who nominated a judge when writing about his or her opinions. Barrett and Thomas criticized coverage they say is results-oriented rather than focused on the court’s reasoning.
But there is ample evidence that media reports detail the justices’ reasoning. At any rate, that would not explain the drop in approval, which in the Marquette polls has declined from 66 percent in 2020.
Sen. Chris Murphy, D-Conn., said he agrees with the perception that the court “is increasingly a political institution.”
But Congress shares the blame, he said.
“We give opportunities for the court to be perceived as political because we don’t legislate,” Murphy said. “So the court ends up stepping into really important areas of law, because Congress has left huge vacuums on immigration policy and telecommunications policy. So if we were more effective legislating, we would eliminate a lot of the ambiguities that the court then takes advantage of.”
Murkowski said the view of the court reflects a larger societal trend.
“I don’t think that the justices are becoming more political,” she said, adding, “Maybe it’s just that everything now has become more political.”
One bright spot for the court: Marquette’s Franklin said that even though the public’s approval of the court has dipped, trust in the institution has remained relatively stable.
Gornstein wondered whether that was sustainable.
“It is all well and good for justices to tell the public that their decisions reflect their judicial philosophies, not their political affiliations,” he said.
“But if the right-side’s judicial philosophies always produce results favored by Republicans, and the left-side’s judicial philosophies always produce results favored by Democrats, there is little chance of persuading the public there is a difference between the two.”