For years the Supreme Court has been quite successful in portraying itself as residing in that first Washington, the idealistic one. After all, its members sat for life, indifferent to the whims of public opinion and immune to the need to raise campaign funds. It has heard arguments from lawyers in court, evaluated those arguments and issued an opinion.
This is the perception that Chief Justice John G. Roberts Jr. has avidly defended: that his court maintains its impartiality. Even as the increasingly robust conservative majority broadened its agenda, Roberts insisted that the court act solely within its traditional, rigid – conservative, one might say – boundaries. But that argument is becoming increasingly difficult to defend, and Americans are increasingly rejecting it.
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Over the weekend, the New York Times revealed that a draft statement had been leaked in May Dobbs v. Jackson Women’s Health Organizationthe decision that was overturned Roe v. calf, was not the first such leak of a result. In 2014, a couple dined with Judge Samuel Alito, the newspaper reported, at which point they were apparently told the judge would be writing an opinion Burwell vs. Hobby Lobby Stores Favoring the hobby lobby. This was communicated to a conservative activist named Rob Schenck and reinforced by simultaneous emails. Alito denied that he or his wife disclosed the opinion in advance.
Alito, also the author of the leaked Dobbs Opinion, was almost as zealous as Roberts in defending the court’s impartiality. He has attacked members of the media who criticize the functioning of the court and haughtily objected to questions about the court’s integrity and politicization. He is also the second most conservative member of the court.
Most conservative is Justice Clarence Thomas, who has been at the center of another flurry of questions. His wife, Ginni Thomas, has been involved in efforts to overturn the 2020 election, including attending the Jan. 6, 2021 White House rally. Thomas was also the only voice to support records from Trump’s White House from scrutiny by the US House Select Committee investigating that day’s Capitol riot.
The indirect link to activism revealed by Ginni Thomas’ involvement reflects perhaps the more important part of the Times report on Alito’s activities in 2014. The couple he dined with were donors specially recruited by Schenck to engage Supreme Court justices in social activities.
He “recruited wealthy donors like Mrs. Wright and her husband Donald” — the couple at that dinner — “encouraged them to invite some of the judges to meals, to their vacation homes or to private clubs,” the Times reported. “He advised allies to donate money to the Supreme Court Historical Society and then mingle with the judges at their events.”
The judges who have been described as “accessible” to public relations? Alito, Thomas and the late Antonin Scalia.
Again, this is not the Supreme Court’s perception that Roberts would like the public to see. None of this is meant to suggest that the entanglement between activists and judges is new, as it is not. What is new, however, is that a judge is at the center of two reported leaks, that another judge’s spouse has worked to overturn the results of a presidential election, and that of course this overlaps with the judges involved in a majority so actively reshaping precedents and strengthens an ideological domain.
The problem is not that the court is conservative. The problem is that the court appears to be enmeshed in the politics it claims to sit above – turning the lack of accountability that should preserve the court’s objectivity into a defensive moat that allows judges to behave as such as they see fit.
Earlier this year, Gallup reported that public confidence in the court had hit a new low in half a century of measurement. That was largely because Democrats viewed the court with renewed skepticism in the face of the leak Dobbs decision and the measurable shift to the right of the court.
What is interesting about the Gallup data, however, is that perceptions of the court are generally associated with confidence in the presidency. The percentage of Americans who said they had “a great deal” or “a fair amount” of trust in both hovered in the 40s for much of the 1980s and 1990s. By the second term of George W. Bush’s administration, both were in their 1930s. By 2022 everyone was in their 20s.
Congress has now been in its teens for more than a decade.
But while perceptions of the court and the White House have moved in tandem, the triggers for the movement vary. Views of the presidency are heavily influenced by partisanship, with members of the president’s party having a high level of confidence in the presidency and members of the outside party having very little. As a result, there is a large partisan divide.
There is far less disagreement in court than in Congress. Both Republicans and Democrats generally dislike Congress, in part because there are opposition party leaders who can oppose either of them. But the court’s views have been much less pressured by partisanship — through 2022. The gap between the parties is more than 25 points at this point, with Republicans much more supportive of the court than Democrats.
It is entirely possible that perceptions of the court are recovering and less biased. But unlike the presidency, or even congress, there is no election where the court could be reshaped. Democratic elected officials have called that the court establishes rules of ethics and conduct that, thanks in part to the court’s perception of Washington textbooks, do not exist to a robust degree.
Of course, that wouldn’t change the frustration with how the court decides – which is the central reason for the democratic skepticism. Conservative activists like Schenck got what they wanted in court. So did Donald Trump, who was trying to deliver for his conservative base. There was a deliberate, energetic effort to set up a court that would issue opinions favorable to the political right. This court is here – and will be cemented in place until the judges retire or die.
And that alone is why the court’s efforts to present itself as above the fight will not work. The forces shaping the court pushed to create one Not stand above the fray but instead respond to the cultural moment. To all appearances they were successful.