The Supreme Court’s erasure of nearly 50 years of abortion rights for women, along with its new tougher stance on gun control and other politically charged rulings, have tarnished the image of an impartial judicial system.
There is no denying that the public is finding it increasingly difficult to see federal judges appointed for life as neutral decision makers.
Yet the conservative majority on the Supreme Court has largely responded with distance and denial. In the weeks following their controversial decisions in late June, the judges demonstrated a lack of awareness of public concern and appeared even more out of touch, gravitating around like-minded audiences and speaking out in closed places.
The pattern emerges as another annual session begins in less than a month. The judges will address challenges to suffrage and racial affirmative action and a clash between religious interests and LGBTQ protections.
Chief Justice John Roberts, in an appearance at a court conference in Colorado on Friday, seemed willfully oblivious to why the public turned on the court.
“So obviously people can say whatever they want, and they are certainly free to criticize the Supreme Court and if they want to say that its legitimacy is in question, they are free to do so,” he said. said, “but I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.
But people don’t question the Court’s legitimacy just because they disagree with opinions. They see the judges breaking with their usual adherence to precedent, offering dubious justifications and voting in what appears to be a partisan move. Polls show heightened political polarization in court responses.
The most consequential decisions by the Republican-appointed majority promote longstanding GOP priorities, such as diminishing reproductive rights, expanding the Second Amendment and limits on federal regulatory authority. The June ruling overturning Roe v. Wade was only possible thanks to the 2020 addition of Judge Amy Coney Barrett, the third appointee by former GOP Chairman Donald Trump, who had sworn to appoint only judges who would overturn the 1973 precedent.
Roberts disagreed with the opinion toppling Roe, although he voted with the conservative majority to uphold Mississippi’s contested ban on abortions after 15 weeks. He wrote that the June ruling amounted to “a serious jolt to the justice system” – which is, in fact, why public concern over the court’s legitimacy goes beyond mere disagreements.
The judges who constituted the slim majority in Dobbs v. Jackson Women’s Health Organization withdrew from the general public this summer.
Judge Samuel Alito, the author of the Dobbs opinion, flew to Rome for an event in July as part of the University of Notre Dame Law School’s religious freedom initiative. In a video posted a week later, he referenced Roe’s knockdown opinion – but only sarcastically.
“I had the honor of writing this mandate, I believe, the only Supreme Court decision in the history of this institution that has been castigated by a whole host of foreign leaders,” Alito said. “One of them was former Prime Minister Boris Johnson – but he paid the price.” (Alito’s quip referred to Johnson’s resignation this summer after a series of scandals in the UK.)
Judge Brett Kavanaugh only met with select judges at court conferences in Rapid City, South Dakota, and Louisville, Kentucky.
Barrett sat down for friendly questions at an invitation-only business conference in Big Sky, Montana. She turned to GOP-oriented settings; During her first few months on the bench, she appeared at a celebration at the University of Louisville’s Mitch McConnell Center and the Ronald Reagan Library in Simi Valley, California.
Roe’s dissenting justices appeared at some public events this summer. Perhaps the most relevant remarks, at a 9th U.S. Circuit Judicial Conference in Big Sky, Montana, broadcast on C-SPAN, were those of liberal Judge Elena Kagan.
She implicitly criticized the Dobbs decision as she observed that the court loses public trust when it overturns precedent, and she insisted that the court cannot assume that people will hold it in high esteem. On the contrary, she said a court must earn and maintain its legitimacy “by acting like a court, doing the kinds of things that don’t seem to people to be political or partisan.”
And she warned: “If over time the court loses its connection with the public and with public sentiment, that is a dangerous thing for democracy.”
During a live appearance from the Temple Emanu-El Streicker Center in New York on Monday night, Kagan touched on similar themes, saying, “I think judges create legitimacy issues for themselves — undermine their legitimacy — when they don’t don’t act so much like courts. and when they don’t do things that are recognized by law.
“And when they instead stray into places where it feels like they are an extension of the political process or where they are imposing their own personal preferences,” she added.
The Dobbs majority justices were coy about their speaking engagements.
Judge Neil Gorsuch appeared at the same court conference in Colorado Springs as Roberts, but without notice. He told the audience he was expecting a report soon on the court’s internal investigation into an initial leak of the Dobbs opinion, which led to Politico’s release of a 98-page draft on May 2.
The Wall Street Journal reported that Gorsuch did not say whether information about the investigation would be made public and said journalists were prohibited from interviewing Gorsuch. (Friday’s Roberts session was recorded by C-SPAN for later distribution.)
Barrett’s appearance at the Big Sky Labor and Employment Conference in early August was not recorded.
Last year, when she appeared in Louisville, Barrett was introduced by Sen. McConnell, the Republican powerhouse who has driven judicial nominations as much as any president in recent years. Barrett’s speech was not open to television cameras and no recording was available. But local media said his opening message was: “My goal today is to convince you that this court is not made up of a group of partisan hacks.”
In a social vein, the New York Times reported last month that the day after the Dobbs ruling, Barrett attended a private party at the home of a top associate at the law firm Jones Day, whose attorneys regularly appear in court. The firm’s Don McGahn, who served as a White House attorney, oversaw Trump’s court program.
One event that was made public was an appearance at the education summit hosted by the Reagan Institute featuring Barrett and liberal Justice Sonia Sotomayor. Both had kind remarks, during the session recorded in mid-May and released in late July.
“Showing that we can disagree on the stakes and the merits without being mean is one of the tributes to the way we do our business,” Barrett said, CNN’s Ariane of Vogue reported.
“Our disagreement on political issues and important constitutional issues does not diminish the value of who Justice Amy Barrett is in my mind or to me,” Sotomayor added.
Roberts, appointed in 2005 by Republican President George W. Bush, has in the past tried to defend the court’s legitimacy and the integrity of the judiciary. More memorably, in November 2018, he said, in response to Trump’s disparagement of a judge as “Judge Obama”: “We don’t have Obama judges or Trump judges, Bush judges or Clintons”.
In Colorado, his response failed to acknowledge the reality of public concerns about a politically motivated justice system.
Multiple polls have shown public approval for the Republican-dominated court at record highs. A Pew Research Center report released Sept. 1 also found that a majority of Democrats (51%) said judges were doing a poor job of keeping their political views out of their rulings.
Republicans have expressed some skepticism about the judges’ biases, but to a lesser extent. Pew reported that 37% of Republicans said judges are doing “a fair or poor job” of keeping politics from how they decide major cases.
Although Roberts dissented in Dobbs, he was solidly in the six-judge conservative majority for other high-profile decisions last session: strengthening gun rights, reducing environmental regulations and allow for a greater blending of church and state.
During Friday’s session in Colorado Springs, Roberts suggested he believed people were wrongly criticizing the court’s crucial role as arbiter of the Constitution.
“If the court does not retain its legitimate function of interpreting the Constitution,” he said. “I don’t know who would take on that role. You don’t want political branches telling you what the law is, and you don’t want public opinion to guide the proper decision.
But this answer probably misses the point that emerges from the public answers: that the court seems to abandon its constitutional role, in favor of an indistinguishable role from the political branches.
When Roberts was asked what he might look forward to in the new session, he first mentioned what he hoped not to see: “I’m looking forward to having a barricaded-free court. … The more normal, the better.