Supremely strange bench fellows (#24)
A look at what's behind the Supreme Court's awkward public relations tour.
In September, Justice Amy Coney Barrett, the newest addition to the Supreme Court of the United States, made headlines after an appearance in Louisville, Kentucky, where she defended the court’s supposedly apolitical nature. This grabbed people’s attention because what Barrett said of her work with the eight other justices seemed part of a weird effort by the Supreme Court to not-so-subtly win over public opinion.
Let me ask you: did you know there are polls asking how much people like the Supreme Court? I did not know this until it was brought up on an episode of Slate’s Amicus podcast—which I highly recommend checking out!—but apparently, it is a thing. And it turns out that the most recent poll shows people aren’t too keen on what SCOTUS—short for the Supreme Court of the United States—has been up to, which probably has to do with the court’s shift toward the right over the past year or so.
According to a Gallup poll last month, public approval of SCOTUS is at 40%. That sorry approval rating certainly seems terrible on its own but it looks even worse when you contrast it against how the rating has changed over 20 years. In 2001, SCOTUS’s public approval rating was at 62%—much higher compared to now. Looking at overall trends from Gallup, the court’s approval rating has seesawed over the past decades, but the current 40% rating is the lowest it’s been since the turn of the millennium. SCOTUS’ popularity seemingly started to take a nosedive between 2012 to 2013—perhaps not coincidentally when SCOTUS effectively gutted the Voting Rights Act by allowing states to change their election laws without federal approval, contradicting the voting rights bill pushed by Black civil rights leaders back in the 1960s. That decision resulted in long-term consequences that we’re seeing today.
For some, it might seem weird that there are folks tracking whether the American public thinks SCOTUS is doing a good job. But public approval is actually really important for the court’s whole existence! And it may also explain why some SCOTUS members, like Justice Barrett and some of her bench fellows, were doing public relations tours ahead of the court’s new term this Fall, trying to convince people—or themselves—that their work *isn’t* politically driven (spoiler: it is).
Above: Judge Judy, who I should clarify is NOT on the Supreme Court yet remains one of the most influential judges in America, let’s be real.
Going back to Barrett’s headline-making appearance, the Louisville Courier Journal reported that she spent “much of her talk at the Seelbach Hilton Hotel arguing the court is defined by ‘judicial philosophies’ rather than personal political views.” Barrett was attending the opening of the University of Louisville’s new McConnell Center—which, yes, was named after Sen. Mitch McConnell (KY-R), known Capitol villain and once Majority Speaker when Republicans controlled the Senate.
At the event, Barrett defended SCOTUS’ decision to allow Texas’s extreme abortion law, which has functionally eliminated abortions outright in the state, to continue through a discreet procedure known as the “shadow docket” that basically allows SCOTUS to forego standard judicial procedure for emergency relief cases. The decision was shocking but not all surprising given the court’s current conservative majority. Still, Barrett insisted that the court wasn’t made up of “a bunch of partisan hacks” like people were suggesting and that they make decisions based on “judicial philosophies” rather than the whims of political parties. We’re not political actors! she said.
McConnell, also at the opening, praised Barrett for not trying to “legislate from the bench” and for her “Middle America” and non-Ivy League roots—of course, he left out the fact that Republicans rammed Barrett’s nomination through after the passing of Justice Ruth Bader Ginsburg, refusing to wait for Joe Biden’s inauguration which would’ve given Democrats the chance to appoint a liberal replacement for Ginsburg.
But Barrett isn’t the only justice hyping up SCOTUS’ supposedly apolitical nature. Justice Clarence Thomas, a conservative jurist best known for being accused by Anita Hill of sexually harassing her in the 1990s and the only Black person on the bench, also tried to convince the masses of SCOTUS’ impartiality during an appearance at Indiana’s Notre Dame University, not long after Barrett had been in Kentucky. He pointed a finger at the press for this alleged misperception about the justices:
“I think the media makes it sound as though you are just always going right to your personal preference. So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician.”
It’s not surprising that right-leaning justices are trying to convince the public that their decisions are totally not biased, despite evidence to the contrary. Right now, SCOTUS has nine justices and it’s considered a 6-3 split with a right-leaning majority—the result of three conservative justices appointed under MAGA megalomaniac ex-President Donald Trump. In case you didn’t know, Supreme Court Justices serve indefinitely, and the Constitution’s instruction that they shall “hold their offices during good behaviour” has essentially always been treated as a lifelong appointment. So they don’t get replaced unless they either 1) choose to resign 2) bite the dust, or 3) behave badly(?). Two of the Trump-appointed justices came onto the bench after a predecessor died (Justice Antonin Scalia died long before Trump took office but didn’t get replaced until Trump’s inauguration because Republicans, who controlled Congress back then, blocked President Obama nominee Merrick Garland. Biden choosing Garland as his U.S. Attorney General was definitely shade to Republicans.)
With more conservatives than liberals, SCOTUS seems to be moving more comfortably in the direction that conservatives approve of, without much regard for keeping up even the appearance of impartiality. But the chorus of conservative justices trying to do damage control on SCOTUS’ public image are joined by an unlikely figure: Justice Stephen Breyer, one of the minority liberals on the bench. Breyer, who was appointed by former President Bill Clinton, has also been preaching the fake gospel of judicial neutrality despite SCOTUS’ obvious swerve to the right. Back in April, the elder justice (he’s the oldest on the bench right now which is why Democrats want him to retire, soon and preferably while they still have control of the presidency and Congress) gave a speech at Harvard in which he criticized the practice of describing SCOTUS justices by the presidents who appointed them (well, guilty) and by their conservative or liberal tendencies (well, unavoidable).
Breyer also had a lot to say on the topic in his new book, The Authority of the Court and the Peril of Politics, in which he waxes poetic about the need for, at the very least, the **appearance** of impartiality. But as Joan Yang at The New Republic wrote, Breyer’s argument ultimately rings hollow since Breyer himself admits to the political nature of a SCOTUS appointee and the difficulty—if not outright impossibility—for justices to avoid considering their own personal beliefs when weighing a court decision:
Breyer promises that his defense of the Supreme Court does not depend on the most naïve kind of separation of law and politics. “To suggest a total and clean divorce between the Court and politics,” he admits, “is not quite right.” Many of the cases are “difficult,” with “considerable merit on both sides.” In these situations, a majority of justices—frequently in ideological groupings—decides which way the country goes. In addition, Breyer writes, the court is often asked to construe “highly general” language like “liberty” or “freedom of speech,” words that, Breyer confesses, “do not dictate their own content.” Owing to this indeterminacy, a “judge’s background, experience, and personal views” about the law’s purposes, the role of the court, or even “the nation’s life” inevitably “make a difference” in how he or she votes.
While these three justices would like people to believe that the court isn’t motivated by the politics of its deciding members, reality suggests otherwise, noticeably starting under Trump’s presidency. In addition to letting one of the wildest abortion laws continue, the current SCOTUS has put out other right-tilting decisions, like allowing states to block voting access measures and ordering states to allow COVID-risky religious indoor gatherings, among other questionable rulings.
The court has also been deciding a lot more cases through the “shadow docket” than what is typically deemed normal. The trend of their decisions on emergency relief cases that go through the shadow docket also shows a tendency that leans toward the conservative. The pattern has been suspicious enough that Congress has begun reviewing SCOTUS’ shadow docket procedure (here’s an in-depth explainer if you want to learn more about it).
OK, so, if Breyer’s conservative counterparts are clearly operating in a way that puts the court’s impartiality in doubt, why on Earth is he helping them convince the public otherwise? As I mentioned at the beginning, public approval is actually very important to the Supreme Court’s existence. Similar to how the Queen of England only has as much power as the British public grants her, SCOTUS only has as much authority as the American public gives it. The court is supposed to be the final decider on how laws of the country should be interpreted in every case, but they have no real power to enforce their decisions. As Leah Litman, an assistant professor of law at the University of Michigan Law School, said while appearing on the Amicus podcast:
“The court gets its authority through people accepting the court as a legitimate institution and believing the court is engaged in law rather than politics. And if people no longer believe that they lose their power.”
This likely explains why some of the justices have been trying so hard to convince the public that they are not a political body. Of course, given SCOTUS’ roles as the highest interpreter of the country’s laws, it would indeed be ideal for the court to have a sense of nonpartisanship in deciding how these laws apply, whether or not they themselves agree with the laws’ substance. But, hey, we live in the real world: there is often a big difference between what something should be and what it actually is. The idea that SCOTUS—which is made up of political appointees who come onto the bench with their own ideological beliefs and biases—work in a neutral silo outside of politics is fanciful, to say the least.
So, the next time you read another headline about a SCOTUS justice pretending that the court would never act out of its own agenda, know that in itself may be political.
TWEET OF THE WEEK: ON THE GOP’S VENDETTA AGAINST… PUPPY TORTURE IN AFRICA? 🐶
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IN CASE YOU MISSED IT
🔥 Organizers of the Jan. 6 Capitol insurrection told congressional investigators they participated in dozens of planning meetings with Republican Congress members and Trump’s White House staff. Wow, who could’ve guessed! | Rolling Stone
🔥 You may know that former U.S. Secretary of State Colin Powell, the first and only Black person to hold that title and who “sold” the argument for the Iraq War, passed away last week. Here’s a look at his complicated legacy. | TIME
🔥 Among the first stories out of the “Facebook papers” leaked by a company whistleblower shows internal arguments over the tech giant’s loose policy regarding climate change misinformation, with some staff—who may or may not be climate change deniers themselves—advocating against tighter policies. | Gizmodo
🔥 Have you heard the drama over Princess Mako, niece to Japan’s Emperor, renouncing her royal title to marry her college sweetheart because he’s not of royal blood? The lovebirds finally got hitched, officially making Mako one of us commoners now. | Guardian
🔥 In France, where bookstores are “essential businesses” during the pandemic, its parliament adopted legislation that will set a minimum price for book deliveries to protect small book stores against competition from Amazon. | Yahoo News
🔥 Brazil President Jair Bolsonaro—who enjoys spreading anti-vax conspiracies in his downtime—could face criminal charges after a Senate committee voted to approve a report recommending charges against the president over his government’s COVID-19 response. | France 24
🖊️ I wrote about the insane influx of state and federal funding into New York’s public school system this year and how school districts haven’t engaged with parents and advocates on their plans to spend the money—as required by state law. | City & State NY
🖊️ Last week, New York started transferring women, including trans women, and gender-expansive detainees out of Rikers’s violent all-women facility known as Rosie’s to state-run prisons outside of the city. But criminal justice advocates and the detainees themselves are pushing against the move. I wrote about it here. | Prism
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TTFN,
Natasha