The Supreme Court returns to action next month amid a backlash to its controversial ruling that restricted the right to abortion, sparking debate even among the justices themselves over whether an institution that relies on the public perception of its legitimacy could lose the trust of the people.
Liberal Justice Elena Kagan warned repeatedly over the summer that the court risks being seen as a results-oriented political arm of government. Chief Justice John Roberts, one of the court’s six Tories, pushed back against some of the criticism in a recent public appearance, saying people shouldn’t question the court’s legitimacy just because they’re not disagree with his decisions. Liberal Justice Sonia Sotomayor echoed some of Kagan’s sentiments.
The authority of the Supreme Court, unique among the three branches of government, rests on how its decisions are received by the people, including elected law enforcement officials, as it does not have the power to overrule them. apply itself unilaterally. As Founding Father Alexander Hamilton wrote in 1788 of the role of the judiciary, courts “have neither might nor will, but merely judgment”. This makes public perception of how the Supreme Court operates vitally important.
“The legitimacy of the court depends on whether the public thinks the court is doing law, not politics,” said Sherif Girgis, a professor at Notre Dame Law School, who served as a legal officer for conservative judge Samuel Alito. .
It’s important for the public to believe that judges are making decisions in good faith based on the law, Girgis said. “It’s bad for the system if the public doesn’t think that’s what it’s doing,” he added.
The court’s new term officially begins Oct. 3, with Democratic President Joe Biden’s reappointment, Justice Ketanji Brown Jackson, taking the bench for the first time after replacing fellow liberal Justice Stephen Breyer, who has retired. in June. The 6-3 Tory majority remains in place as the court faces a series of burning issues, including whether to end the use of racial preferences in college admissions and two major election-related disputes that could impact the 2024 presidential race.
The justices will return to the bench at a time when they face near unprecedented scrutiny following the June decision to overturn the landmark 1973 Roe v. Wade, who protected the right to abortion. It was one of a series of rulings the court made along ideological lines; others have limited the power of the Environmental Protection Agency to fight climate change and expanded religious rights.
The court was already reeling from the leak of an unpublished draft of the abortion ruling, which led to protests outside judges’ homes and the erection of a security fence around the court building . A man has been charged with attempted murder after being arrested near the home of conservative judge Brett Kavanaugh in possession of a firearm.
An NBC News poll found the court’s favor rating plummeted following the abortion ruling, with more Americans saying they had low confidence than those who said they had high confidence in the court for the first time since 2000. There are also signs the ruling has given Democrats a boost ahead of the November election that will determine control of Congress.
Kagan, who has dissented in the abortion case and other major rulings, has said in public appearances that legitimacy can be undermined in a variety of ways, including taking a cavalier approach to the court in the face of a long-standing precedent. The three liberal justices, in their joint dissent in the abortion case, were particularly critical of the majority’s approach of dropping Roe v. Wade after almost 50 years.
“When the courts become extensions of the political process, when people see them as extensions of the political process, when people see them as simply trying to impose personal preferences on society, regardless of the law, that’s where that there is a problem,” Kagan, who was nominated by former President Barack Obama, said during a Wednesday appearance in Chicago.
What makes the court legitimate is “to do something that is demonstrably within the law, and that’s when a court will build up a reservoir of public trust and goodwill,” he said. she added.
Sotomayor said at an event in California on Thursday that “there will be questions about the legitimacy of the court” if people think judges are acting on politics, according to a Courthouse News Service report.
During his Sept. 9 appearance at a court conference in Colorado, Roberts, who was nominated by former President George W. Bush, acknowledged that people have a right to criticize court decisions while pushing back. the idea that its legitimacy should be questioned.
“So obviously people can say whatever they want, and they’re certainly free to criticize the Supreme Court. And if they want to say that legitimacy is in question, they are free to do so. But I don’t understand the connection between opinions that people disagree with and the legitimacy of the court,” he said.
Noting that judges themselves often disagree with majority rulings, he added that “the mere fact that people disagree with an opinion is no reason to question the legitimacy of the court”.
A “component of minority rule”
The Supreme Court has faced questions about its legitimacy at various points in history, including in 1857 when it issued its notorious Dred Scott decision, which said slaves were not constitutionally protected. , a move that helped pave the way for the administration of President Abraham Lincoln. and the civil war. Conversely, in 1954, Southern states resisted the application of the landmark Brown v. Board of Education, which ended segregation in public schools. In Arkansas, President Dwight Eisenhower finally summoned US troops to ensure black students could desegregate a high school in Little Rock, illustrating the court’s lack of power to enforce its decisions. In a notable clash between the president and the court, President Franklin Delano Roosevelt unsuccessfully sought to increase the number of judges after the court repeatedly reversed elements of his New Deal economic plan.
Even before the recent decision on the abortion, progressive activists had sounded the alarm over what they saw as a court out of step with the nation, with the 6-3 conservative majority only made possible because Republican President Donald Trump been able to fill three vacancies in a single four-year term. One of the vacancies, created by the death of conservative Justice Antonin Scalia in 2016, dated back to the Obama administration, and Trump was only able to fill it because the Republican-led Senate refused to take action against it. Obama’s candidate, Merrick Garland, now Attorney General.
Liberals also point to the fact that Republican presidents appointed six of nine justices despite losing the popular vote in seven of the last eight presidential elections.
“There is a real element of minority rule in the way the court is constituted that is somewhat unique historically, which affects its legitimacy,” said Chicago-Kent College of Law professor Carolyn Shapiro, who served as an intern. at Breyer.
Under pressure from progressive activists who want to expand the court, Biden last year appointed a commission to study potential reforms. The commission, which was not tasked with making recommendations, ended in December with members divided on expanding the court while acknowledging it was a controversial idea. The commission was more receptive to imposing term limits so that judges serve fixed terms instead of having lifetime appointments, which could make the composition of the court more representative of election results.
Adam White, a conservative scholar at the American Enterprise Institute who served on the commission, said there are ways the court can change its practices now to fend off some of the recent criticism.
White pointed to the court’s growing reliance on an expedited process dubbed the “shadow case,” in which major cases are decided quickly and without full oral arguments or briefings, as an area where judges could change course. He added that judges could also exercise more restraint in choosing which appeals they hear and be more careful about what they write in their opinions.
“I think the court needs to seriously think about how it does its job,” he said.