Something has happened at the U.S. Supreme Court. Polls show that public approval of the Court’s actions has dropped. Five of the normally laconic justices are speaking out. They are worried about a loss of public confidence in their decisions, and with good reason.
With issues such as abortion, guns, religious rights and possibly affirmative action coming up on a hot docket this term, they want to be sure to get it right. The focus will be a Mississippi abortion statute banning almost all abortions after 15 weeks of pregnancy. Roe v. Wade, decided nearly 50 years ago, and reaffirmed by Planned Parenthood v. Casey 20 years later, will be on the block. “Is this the term in which the culture wars return to the Supreme Court in a big way?” wonders David Strauss, a University of Chicago law professor.
Justice Stephen Breyer is worried. He can remain on the Court as long as he likes. But he is 83 years old, and rumors abound of his imminent retirement. Changes in Court personnel always bring new perspective. But the politically charged Trump appointments of Justices Gorsuch, Kavanaugh and Barrett have taken the Court on a decisive tack to the right. If changing judges changes law, what is law anyway?
Alexander Hamilton thought that the Court was the weakest and “least dangerous” of the three branches of government. The Court has no army and no money. It must look to the political branches of government to implement its decrees. But its traditional legitimacy rests on the near universal public respect for its decisions, no matter how wrongheaded.
Chief Justice John Roberts appears concerned that the more partisan the Court is perceived to be, the less public support it will have. And that is true. But it hasn’t stopped the justices from deciding cases that contradict established precedent or rest on sources outside the Constitution.
Justices rarely speak publicly apart from what they say in their opinions, but that’s starting to change. Liberal Justice Breyer has said that differences among the justices are not political but doctrinal, arguing that it’s a matter of judicial philosophy, not politics. But, as Hamlet said, “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.”
The newest justice, conservative Amy Coney Barrett, spoke recently at a dedication of the McConnell Center at the University of Louisville Law School. Introduced by Sen. Mitch McConnell (R-Ky.), Barrett said she is anxious that the justices not be perceived as a “bunch of partisan hacks.” She rejects the easy handles “liberal” and “conservative.” She calls herself an originalist, and says Breyer is a “pragmatist.” New coinage for old currency.
So why on certain questions about voting rights, abortion, guns and church and state do we see time and again justices appointed by Republican presidents voting one way and justices appointed by Democratic presidents voting the other?
Justice Sonia Sotomayor is outspoken on the point. She warns that “there is going to be a lot of disappointment in the law, a huge amount.” Last term, Sotomayor, an Obama appointee, dissented in more than half of the divided cases for the third time in eight years.
From the other end of the doctrinal spectrum, Justice Samuel Alito denounced critics he said were seeking to portray the Court as “sneaky” and “sinister.” Justice Clarence Thomas weighed in during a recent appearance at Notre Dame Law School. “I think the media makes it sounds as though you are just always going right to your personal preference,” Thomas said. “So, if they think you are anti-abortion or something personally, they think that’s the way you always will come out.” Let’s not dwell on the point that Thomas is anti-abortion, and that is how he comes down almost every time the issue is presented.
Indeed, the Court’s power derives from the public’s respect for its decisions, and that respect diminishes when Court decisions are perceived as politically partisan. So how do they justify decisions that, as the late Justice John Paul Stevens put it, “stretch beyond the text of the Constitution”? Plainly, Court watcher Linda Greenhouse suggests, based on preferred policy choices, some of which may be faith based. Seven of the nine justices were raised as Catholics.
President Franklin Roosevelt was so incensed by a spate of 5-4 decisions invalidating his New Deal legislation that he sought to pack the Court with additional justices. Lifetime tenure for judges is in the Constitution, but the size of the Court is up to Congress. It has changed seven times in our history. The “court packing” bill was dead on arrival in the Senate. Eventually, several justices died or retired, and Roosevelt got to appoint justices more to his liking.
Today, a presidential commission is considering proposals to add seats to the Court, limit lifetime tenure and require more transparency. Lots of luck to the commission’s recommendations in this closely divided Congress.
Transparency is a concern at a time when the Court increasingly makes use of a “shadow docket” to decide cases. Recently, five justices decided, without full briefing or oral argument, not to disturb a Texas statute providing $10,000 to anyone who sues anyone facilitating an abortion later than six weeks after conception. Dissenting from the order, Sotomayor called the decision “stunning.”
James D. Zirin is a former federal prosecutor in the Southern District of New York and author of the 2016 book about the Supreme Court “Supremely Partisan.”