Will the US Supreme Court regret blowing up its reputation?
The United States Supreme Court’s transparent rightwing bent and disregard for precedent, facts and history (not to mention the justices’ increasingly nasty and injudicious tone) have had two predictable results. Neither is good news for the right-wing activists who fought for decades to pack the court with unbridled partisans.
The most immediate impact is on the court’s standing with the public. And I’m not referring to the justices who have to suffer fellow citizens peacefully exercising their First Amendment rights to freedom of speech and assembly. (They don’t get a moat and drawbridge to go with their robes.)
More importantly, the court has suffered a serious drop in voter confidence.
A new Marquette University Law School national poll, for example, shows ‘‘approval of the US Supreme Court has fallen to 38%, while 61% disapprove of how the Court is handling its job’’. Specifically, ‘‘the percentage saying they have little or no confidence in the court has more than doubled since 2019’’.
The plunge has been dramatic and swift. In May, the court’s approval stood at 44%. In March, it was 54%, and in September 2020 it was 66%. Voters have figured out that the court is exercising raw power.
The Marquette poll reports, ‘‘In this most recent poll, less than half as many see the court as ‘moderate’ compared to perceptions in September 2019, and almost seven times as many say it is ‘very conservative’, as was the case in September 2019’’.
This should matter to the justices. If Democrats in the near future hold the White House, the House majority and a Senate majority sufficient to break the filibuster, they might seriously consider proposals to limit the court’s jurisdiction and impose term limits.
They might also consider expanding the court, though public opinion on that runs negative. In any event, the right-wing majority is tempting the political branches to curtail its power.
The perception of the court as a partisan body might also encourage other branches, lower courts and state governments to resist its edicts. Some local prosecutors have already announced they won’t enforce abortion bans that went into effect when the court overturned Roe v Wade.
Juries hearing cases might indulge in jury nullification.
When it comes to funding of religious institutions, school districts and local governments might continue to deny money to religious schools, forcing them to litigate the particulars of every case.
The other unexpected consequence of the court’s sprint to the right is a resurgence in support for abortion rights. Multiple states will include referendums on their November ballots to protect abortion rights. There has also been a more general surge in support for Democrats in the midterms.
When it comes to funding of religious institutions, school districts and local governments might continue to deny money to religious schools, forcing them to litigate the particulars of every case.
The great ‘‘decoupling’’ continues – that is, a sizeable number of voters who disapprove of President Joe Biden’s performance nevertheless plan to vote Democratic in November.
A Politico-Morning Consult poll found that 18% of Biden disapprovers plan to vote for Democrats in the midterms. Polls from CNN and the New York Times-Siena put that figure at 19%.
We’ll see whether this lasts until November.
If so, it might be labelled a backlash to the Supreme Court’s abortion decision.
Meanwhile, congressional Democrats have been teeing up bills to codify protection for samesex marriage, access to contraception and the right to interstate travel for abortions.
Not all will get past the filibuster in the Senate, but Republicans will be forced to cast votes that will not be popular in some congressional districts. (Two freshman Republicans from competitive California districts both voted against protections for same-sex marriage.)
In the end, the court’s turn toward aggressive partisanship will likely come with a heavy price – both for the court and for the right.
That’s small comfort to the victims of the court’s decisions, but it is proof that a court that strays far from Americans’ deeply held values invites political blowback. –