The Supreme Court is in the process of demolishing itself — and perhaps our democracy along with it.
Worse, the justices responsible for wrecking the court’s reputation seem not to even care.
We need a Supreme Court, as Alexander Hamilton argued in Federalist 78, “to guard the Constitution and the rights of individuals.”
We need a Supreme Court to interpret for contemporary times a constitution written 237 years ago, to translate the words of Congress as laid down in federal law, to resolve the contradictions that emerge from the multiple institutions wielding power in our federal system and to serve generally as the highest court in the land.
That is not to say the court is always “right” — it certainly has been wrong in many cases. But it is always decisive.
Al Gore conceded an election he may well have won because of a Supreme Court decision. Gore’s wholly voluntary concession illustrates the limited ability the court has to enforce its decisions. It commands neither an army nor a police force.
As Hamilton wrote, “The executive…holds the sword…The legislature…commands the purse…The judiciary, on the contrary, has no influence over either the sword or the purse…” it has “neither force nor will, but merely judgment.”
Americans obey the judiciary’s dictates because they are perceived to be legitimate judgements. Absent that legitimacy, there might be law but no order.
The court’s legitimacy in turn rests on the perception that the justices are independent and impartial — qualifications that date back at least to the Hebrew Bible and to Socrates.
By contrast, as Justice Elana Kagan noted, when the court acts “like an extension of the political process,” it’s a “problem” that risks undermining the only enforcement mechanism it has, it’s legitimacy.
Too many of today’s justices on the right appear to be partisan political hacks wearing black robes.
There’s nothing wrong with being a partisan political hack — I’m one after all. The problem starts when they put on black robes and sit as judges in our courts.
The result is that public regard for the court has reached record lows. In the 1980s, as many as 56 percent of Americans had a least “a lot” of confidence in the Supreme Court, according to Gallup, a number which plummeted to 40 percent in 2020, 25 percent in 2022, after Roe v. Wade was overturned, and sat at 27 percent in 2023.
A CNN poll, before the latest flag controversies engulfing Justice Samuel Alito, found only 42 percent with even a “moderate” amount of trust in the Supreme Court to make the right decisions on legal cases related to the 2024 election.
Legitimacy lost.
Then-professor, now Justice, Amy Coney Barrett foresaw the problem. “If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline. Its members might be seen as partisan rather than impartial and case law as fueled by power rather than reason.”
But at the end of the day, she didn’t care. Guided by her partisanship and ideology, she happily overturned a 50-year-old precedent that Justice Brett Kavanaugh called “settled law,” exactly because the composition of the court changed.
By nearly 2-to-1 Americans disapproved of the court overturning Roe.
Opinions radically out of sync with public preferences are just one reason the Supreme Court is held in such disrepute.
Another is the unethical behavior of some of the justices. Kavanaugh lied about his position on Roe. Justice Clarence Thomas did not disclose GOP billionaires gifting him “38 vacations, 26 private jet flights, eight flights by helicopter, a dozen VIP passes to sporting events, as well as stays at luxury resorts in Florida and Jamaica.”
Alito made a series of claims that few regard as credible with regard to an upside-down American flag and an “Appeal to Heaven” flag flown at his homes, which some speculate are connected to Jan. 6.
Which brings us to recusal. Thomas, by virtue of his wife’s efforts to overturn the election and Alito, by virtue of flying flags of rebellion, could contribute to restoring public faith in the court by recusing themselves from cases stemming from the 2024 election and Jan. 6.
They haven’t. And they won’t precisely because they are partisan political hacks wearing black robes. Partisanship and ideology are more important to them than integrity and the Constitution they swore to defend.
Mellman is a pollster and president of The Mellman Group, a political consultancy. He is also president of Democratic Majority for Israel.