Supreme Court has a crisis of trust

Even into the 21st century, as the country grew more polarized, the court’s rulings remained largely in line with the views of the average American voter. That is no longer the case.

The Supreme Court’s authority within the American political system is both immense and fragile. Somebody has to provide the last word in interpreting the Constitution and — this is the key — do so in a way that is seen as fair and legitimate by the people at large.

What happens when a majority of Americans don’t see it that way?

A common response to this question is to say the justices shouldn’t care. They aren’t there to satisfy the majority or to be swayed by the shifting winds of public opinion. That is partly true: The court’s most important obligations include safeguarding the constitutional rights of vulnerable minorities who can’t always count on protection from the political process and acting independently of political interests.

But in the bigger picture, the court nearly always hews close to where the majority of the American people are. If it does diverge, it should take care to do so in a way that doesn’t appear partisan. That is the basis of the trust given to the court by the public.

That trust, in turn, is crucial to the court’s ability to exercise the vast power Americans have granted it. The nine justices have no control over money, as Congress does, or force, as the executive branch does. All they have is their black robes and the public trust. A court that does not keep that trust cannot perform its critical role in U.S. government.

And yet as the justices opened a new term, fewer Americans have confidence in the court than ever before recorded.

Chief Justice John Roberts recently suggested that the court’s low public opinion is just sour grapes by those on the short end of recent rulings. “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court,” he said in September.

This is disingenuous. The court’s biggest decisions have always angered one group of people or another. Conservatives were upset, for instance, by the rulings in Brown v. Board of Education, which barred racial segregation in schools, and Obergefell v. Hodges, which established a constitutional right to same-sex marriage. Meanwhile, liberals were infuriated by Bush v. Gore and Citizens United v. Federal Election Commission, which opened the floodgates to dark money in politics. But overall public confidence in the court remained high until recently.

The actual cause of its historic unpopularity is no secret. Over the past several years, the court has been transformed into a judicial arm of the Republican Party. This project was taking shape more quietly for decades, but it shifted into high gear in 2016, when Justice Antonin Scalia died and Senate Republicans refused to let Barack Obama choose his successor, obliterating the practice of deferring to presidents to fill vacancies on the court. Within four years, the court had a 6-3 right-wing supermajority, supercharging the Republican appointees’ efforts to discard the traditions and processes that have allowed the court to appear fair and nonpartisan.

As a result, the court’s legitimacy has been squandered in the service of partisan victories. The Dobbs decision in June — which overturned Roe v. Wade, eliminated American women’s constitutional right to control their own bodies and was a priority of the Republican Party for decades — is only the most glaring example. In cases involving money in politics, partisan gerrymandering and multiple suits challenging the Voting Rights Act, the court has ruled in ways that make it easier for Republicans and harder for Democrats to win elections. In 2018, the court ruled that public-sector labor unions violated the First Amendment rights of nonmembers by requiring them to pay fees to support the unions’ work bargaining on their behalf, after decades of rulings in which the court had found the opposite to be true. That ruling further weakened organized labor, another Republican goal.

For most of the court’s history, it was difficult to predict how a case would turn out based on the party of the president who nominated the justices. Even into the 21st century, as the country grew more polarized, the court’s rulings remained largely in line with the views of the average American voter. That is no longer the case. The court’s rulings are now in line with the views of the average Republican voter.

In the process, the court has unmoored itself from both the Constitution it is sworn to protect and the American people it is privileged to serve.

There is no clear solution to this crisis. Legal scholars have put forward many proposals for structural reform — expanding the number of justices, imposing term limits or stripping the court of jurisdiction over certain types of cases — but none are a perfect remedy to the court’s politicization.

In the meantime, it is worth remembering that the court heads only one branch of the federal government. Congress has more power to counteract bad rulings than it generally uses — by doing its job and passing laws.

What would such a response look like? Here’s an example: On the final day of the last term, the right-wing justices hobbled the Environmental Protection Agency’s ability to fight climate change by requiring reductions in carbon dioxide emissions from power plants. Congress responded by adding a provision to the Inflation Reduction Act that reinforced the EPA’S authority.

With a few exceptions, the Supreme Court has rarely been at the forefront of making America a more equal place. But we are not consigned to living under the thumb of a reactionary juristocracy. The meaning of the Constitution is far more than what the court decrees; it is the result of an ongoing conversation between the court and the American people. Those who protested the loss of their rights after the Dobbs decision and those who have shown their determination to protect those rights are speaking directly to the court. When the justices stop listening, as they have at other moments in history, the people’s voices will eventually become too loud for them to ignore.