Supreme Court Watchers Predict Problems As Judges’ Public Approval Erodes

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The Supreme Court’s approval rating is plummeting, its critics are more caustic, and judges feel compelled to publicly argue that they are judicial philosophers, not robed politicians.

All this as the court embarks on October 4 on one of the most divisive terms in years. The cases already on record concern gun control, the separation of church and state, and the biggest showdown in decades over the future of Roe v. Wade and the constitutional right to abortion.

Meanwhile, a presidential commission that studies the tribunal is bombarded with criticism from the left, and sometimes the right, that judges are too political, too powerful, and serve too long.

Even those who appreciate the tribunal see problems ahead.

“Not since Bush v. Gore has the public perception of the court’s legitimacy seemed so seriously threatened,” Georgetown Supreme Court Institute executive director Irv Gornstein said last week in a press release. -taste of the upcoming court warrant.

Senator Lisa Murkowski, R-Alaska, said she had serious concerns for the court and the government in general.

“I worry a lot about this, because when the public starts to question and doubt the independence of this separate but equal third branch of government, they have a problem here,” she said, adding: “I think the public should be able to trust that the judiciary will be this independent and impartial control” over political branches.

A Gallup poll released last week found that Americans ‘opinions of the Supreme Court had fallen to a new low, with just 40 percent approval of judges’ professional performance. “At this point, less than a majority of Republicans, Democrats and Independents approve of the work done by the court,” said Gallup, who has been following the trend since 2000.

A recent survey from Marquette University law school documented the same dramatic drop. Its figures show that public approval rose from 60 percent in July to 49 percent in September.

These weeks are generally quiet in court, with the judges on summer vacation. But in emergency rulings in August and September, the court ruled against two initiatives by the Biden administration, ending a nationwide moratorium on deportations and reimposing a abandoned immigration policy. And in a bitter 5-4 split that sparked controversy and prompted Congress to take action, the court allowed a Texas law to go into effect banning most abortions after six weeks of pregnancy, while that legal challenges continue.

These late summer decisions apparently came at a cost. “All that people have come to think of as moderation on the ground over the past year has been followed by these three decisions, back to back and close, all of which have taken a conservative turn,” said Charles Franklin, director. of the Marquette poll, explaining the decline in approval.

In recent weeks, three judges – the most recent, Amy Coney Barrett, and her oldest, Tory Clarence Thomas and Liberal Stephen Breyer – have defended the tribunal’s decision-making and independence in speeches and talks.

“My goal today is to convince you that this tribunal is not made up of a bunch of partisan hacks,” Barrett said in a speech in Kentucky, asserting that forensic philosophies, not partisan leanings, dictate them. court decisions.

Thomas, in a speech at Notre Dame, said judges do not rule on the basis of “personal preference” and suggested that the nation’s leaders should not “allow others to manipulate our institutions when we do not. ‘not get the result we like.

Breyer finds himself increasingly at odds, especially in emergency orders that come without the normal court briefing and argument.

But promoting a new book that warns that the court restructuring would be seen as a partisan move jeopardizing the court’s authority, he highlighted controversial areas in which liberal and conservative judges have reached agreement. . He mentions upholding the Affordable Care Act for the third time and staying away from the electoral challenges raised by President Donald Trump and his allies.

The protests did not have the desired effect, at least among some Liberals and Democrats.

“I think the last few years have been really very dangerous and potentially devastating for the credibility of the Supreme Court because the public sees the court as increasingly political, and the public is right,” said Senator Richard Blumenthal, D-Conn., Who served as Supreme Court clerk to Judge Harry Blackmun. “The statements of Thomas, Barrett, Breyer, you know, give me pause… they’re just fundamentally not credible.”

Democrats remain angered at Trump’s ability, with a push from then-Senate Majority Leader Mitch McConnell, R-Ky., To transform the Supreme Court.

McConnell refused to allow a hearing on President Barack Obama’s Supreme Court choice Merrick Garland in 2016, saying it was inappropriate in an election year. He then rushed to confirm Barrett to replace late judge Ruth Bader Ginsburg just days before election day, and after voters began to advance polls that denied Trump a second term.

In addition to replacing Judge Anthony Kennedy, Trump appointed and McConnell’s Republican-majority Senate confirmed Barrett and Justices Neil Gorsuch and Brett Kavanaugh, overwhelmingly in the party sense. This gave the court a conservative 6-3 majority which is expected to stick in the years to come.

Some conservatives argue that questions about the court’s legitimacy are cooked up by Democrats and Progressives, who they say turn every hated decision into a call for more judges while Democrats control the White House and the Senate.

Roman Martinez, a Washington lawyer who worked for Kavanaugh and Chief Justice John Roberts Jr., told the Georgetown event that “inflammatory language” plays a role in the court’s public disapproval.

“I think there is a substantial campaign to delegitimize the court which has been successful on the left,” said Martinez, who praised Breyer for showing “courage” in speaking.

He claimed that Senate Democrats and liberal interest groups have tried from the start to label Trump’s candidates as supporters and bias.

These critics argued that “the reason these people were brought to court was that they were going to hand the election over to Donald Trump, they were going to protect him from the investigation and they were going to overturn Obamacare,” Martinez said.

“And none of those things happened.”

Of course, Trump himself was the source of some of these expectations. He said Barrett was needed for a full tribunal to hear election disputes, and proclaimed that those he appoints to the High Court will overthrow Roe.

His transactional approach to judicial appointments was exposed when Roberts berated the president for calling a federal judge “Judge Obama.”

“Sorry Chief Justice John Roberts, but you do have ‘Obama judges’, and they have a very different point of view than those charged with the security of our country,” Trump tweeted at the time.

Such criticism stings whether they come from the left or the right, as recent appearances by the judges have shown.

But their responses also drew criticism. Barrett’s comments came during an appearance with McConnell at a University of Louisville center named after the senator. Refuting accusations the tribunal is partisan after being introduced by one of the Senate’s main supporters – McConnell does not pledge whether a Republican-led Senate would accept a Supreme Court nomination from President Joe Biden – made Barrett an easy target.

McConnell will appear with Thomas next month as the keynote speaker when the Heritage Foundation honors Thomas’ three decades on the Supreme Court.

Similar to Roberts’ criticism, Breyer complained that the media often notes the president’s party who appointed a judge when they write about his opinions. Barrett and Thomas have criticized the coverage which they say focuses on results rather than court reasoning.

But there is plenty of evidence that media reports detail the judges’ reasoning. In any case, that would not explain the drop in approval, which in the Marquette polls fell from 66% in 2020.

Senator Chris Murphy, D-Conn., Said he agreed with the perception that the tribunal “is increasingly a political institution”.

But Congress shares the blame, he said.

“We give the court the opportunity to be seen as political because we don’t legislate,” Murphy said. “So the court ends up intervening in areas of the law that are really important, because Congress left huge voids on immigration policy and telecommunications policy. So, if we were more efficient in legislating, we would eliminate a lot of ambiguities that the court then takes advantage of. “

Murkowski said the court’s view reflects a broader societal trend.

“I don’t think judges are getting more political,” she said, adding: “Maybe it’s just that everything has now become more political.”

A bright spot for the tribunal: Franklin de Marquette said that although public approval of the tribunal has waned, confidence in the institution has remained relatively stable.

Gornstein wondered if this was sustainable.

“It is all well and good for judges to tell the public that their decisions reflect their judicial philosophies, not their political affiliations,” he said.

“But if right-wing judicial philosophies always produce results favored by Republicans, and left-wing judicial philosophies still produce results favored by Democrats, there is little chance of persuading the public that there is a difference between the two. “


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