Saturday, 16 Oct 2021

Opinion | The Supreme Court’s Pain — and Our Anger

In January 2001, the Supreme Court was hurting. Thirty-six days after Election Day, on Dec. 12, 2000, the justices had divided 5 to 4 in its vote that stopped the Florida recount and effectively called the presidential election for the Republican candidate, George W. Bush.

In the ensuing weeks, with the court in a monthlong winter recess, justices on both sides of Bush v. Gore fanned out across the world to reassure the public, and perhaps themselves, that normal life at the Supreme Court would resume.

“If you can’t disagree without hating each other, you better find another profession,” Justice Antonin Scalia told a group of law students in San Diego on Jan. 23. The justice, whose side had prevailed, assured the students: “Trust me, there was no bitterness at the court after the decision was made.”

Speaking at the University of Kansas on Jan. 25, Justice Stephen Breyer, one of the four dissenters, insisted that the decision had reflected neither ideology nor politics, but simply competing legal views. “When you’re talking about the judicial system, what you’re talking about is people carrying on a discourse completely informed and civilized,” he said. He quoted a statement Justice Clarence Thomas, a member of the Bush v. Gore majority, had made the day after the ruling: “I can’t remember an instance in conference when anyone has raised their voice in anger.”

And in Melbourne, Australia, Justice Ruth Bader Ginsburg, whom the decision had infuriated, adopted a measured tone in addressing a law school audience. “Whatever final judgment awaits Bush v. Gore in the annals of history,” she said, “I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair.”

Two decades later, as a new Supreme Court term begins, the court is hurting again. The majority’s refusal a month ago to prevent Texas from shutting down access to legal abortion while lower courts weigh challenges to the state’s bizarre vigilante law — a law paused yesterday night by a federal judge — has once again turned a harsh public spotlight on a 5-to-4 division among the justices. And once again members of the court have taken to the road in defense of the institution’s ability to render impartial justice.

But there is a difference. The justices’ defensiveness comes with an edge. The conservatives appear to have deflected any impulse toward self-examination to a critique of how the media has covered the court’s recent actions. The problem isn’t the court, in other words, it’s those who presume to explain the court to the public.

Speaking last month at the University of Notre Dame, Justice Thomas complained that “the media makes it sound as though you are just always going right to your personal preferences.” He continued: “They think you become like a politician. That’s a problem. You’re going to jeopardize faith in legal institutions.”

Justice Samuel Alito, following Justice Thomas to Notre Dame a week later, attacked critics of the court’s growing use of its emergency “shadow” docket to resolve important cases without setting them for full briefing and argument. (The court’s unsigned order in the Texas abortion case is the most prominent but hardly the only recent example of this problematic practice.) “The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” Justice Alito said. “This portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

Justice Amy Coney Barrett, speaking not at Notre Dame, where she taught law for 15 years before becoming a federal appeals court judge, but at the University of Louisville, told her audience last month that “my goal today is to convince you that the court is not comprised of a bunch of partisan hacks.” Media coverage of the court “makes the decision seem results-oriented” but that is not the case, she said. “Judicial philosophies are not the same as political parties.” Justice Barrett chose a distinctly discordant venue to make her case that the Court is nonpartisan. Her speech was part of the celebration of the 30th anniversary of the university’s McConnell Center, named for the Kentucky Republican whose engineering of her confirmation to the court on the eve of last November’s presidential election, without a single Democratic vote, set a new standard for Supreme Court-related partisanship.

The Supreme Court got off easy in the aftermath of Bush v. Gore. Opinion polling during the ensuing months revealed, to the surprise of the decision’s many critics, that the court had not suffered much in the public’s estimation. One reason may have been that during the period surrounding the decision, the court did not appear to the public to be as polarized along partisan lines. Two of the liberal justices, John Paul Stevens and David Souter, had been appointed by Republican presidents. Two other Republican-appointed justices, Sandra Day O’Connor and Anthony Kennedy, departed from conservative orthodoxy with some regularity.

Justice Kennedy, in fact, wrote the majority opinion in the first important case the court decided following Bush v. Gore, holding that Congress had violated the First Amendment by restricting lawyers who received money from the federal Legal Services Corporation from bringing lawsuits to challenge existing welfare law. That decision, Legal Services Corporation v. Velazquez, issued in February 2001, was an unexpected liberal victory.

The composition and public perception of the court now is very different. All six of the court’s conservatives are Republican appointees, and the three remaining liberals were all appointed by Democratic presidents. A Gallup Poll conducted shortly after the Sept. 1 order in the Texas abortion case showed that public approval of the court had plunged from 58 percent a year ago to 40 percent today, the lowest in the 21-year history of this particular survey.

A poll conducted during the same period by the Annenberg Public Policy Center of the University of Pennsylvania and released on Monday found that 34 percent of Americans agreed with the statement: “If the Supreme Court started making a lot of rulings that most Americans disagreed with, it might be better to do away with the court altogether.” Two years ago, when Annenberg last asked that question, only 20 percent agreed.

My point is not to suggest that the court should be running a popularity contest, but rather to reflect on the erosion of the traditional reservoir of public regard for the institution has provided. Three polls within the past month show that fewer than a third of Americans want to see the court overturn Roe v. Wade. Yet it appears that only a third of the justices can be counted on to preserve the right to abortion as defined by the court’s current precedents. The culture war that brought us to this point may acquire another tangible manifestation as women unlucky enough to live in red states are forced to travel hundreds of miles from home to exercise what for 50 years was their constitutional right.

I’ve quoted conservative justices defending the court from what they portray as unfair misrepresentation, but some liberal justices also shared their own views in off-the-bench remarks. It was Sonia Sotomayor, speaking in an American Bar Association-sponsored virtual “fireside chat” last week, who came closest to the truth. “There is going to be a lot of disappointment in the law,” she predicted. “A huge amount.”

Linda Greenhouse, a contributing Opinion writer, covered the Supreme Court for The Times from 1978 to 2008.

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