Americans No Longer Have Faith in the US Supreme Court. That Has Justices
Worried
Russ Feingold
Guardian UK
Americans No Longer Have Faith in the US Supreme Court. That Has Justices
Worried
Supreme Court building. (photo: Geoff Livingston/Getty)
21 October 21
The justices are vulnerable to public pressure in support of court reform.
Thats why we must continue to push for change
Our highest court is facing a legitimacy crisis and is in desperate need of
reform. And yet, due to the deadlock that seems to be Congress these days, I
too often hear the rebuke to US supreme court reform, None of these reforms
will happen, so what is the point of talking about them?
This defeatist argument fails to recognize a pivotal audience who surely
hears the growing public calls for urgent reform the supreme court itself.
We need only look to the number of justices who have felt the need recently
to speak up on behalf of the court, in an attempt to justify its egregious
abuse of judicial norms and processes, to know the justices are listening.
Historically, one of the most common features of supreme court justices is
their public silence when away from the court. They generally let their
decisions speak for themselves. No longer is that tenable as this courts
conservative supermajority insists on using its power to advance a partisan
agenda at the expense of our constitutional rights and democratic
legitimacy.
Most recently, Justice Samuel Alito gave a speech at the University of Notre
Dame that can only be described as an attempted takedown of the press. In
his remarks, Justice Alito lambasted the work of journalists and even
criticized the press for using the term shadow docket, a term coined by a
conservative law professor. All Justice Alito succeeded in doing, however,
is proving his sensitivity to the public discourse about the court.
Its not just justices who are attempting to justify the courts break from
judicial norms and disregard for constitutional rights. Senator Chuck
Grassley, for instance, has even taken it upon himself to defend the court
from what he perceives as bullying. His implication, however, that the court
should be beyond reproach is to suggest the public ought to sit idly by
while our rights are systematically dismantled for partisan gain.
Justices, and politicians, can proclaim that the court is not political or
that the publics waning approval of the institution is a product of the
media, but nobody is forcing the court to deface its own norms and
precedents.
Nobody is forcing this conservative supermajority to use the shadow docket
to rewrite American jurisprudence. Pregnant people in Texas no longer have a
constitutional right to abortion because five justices on the supreme court
opted to nullify Roe v Wade by way of the shadow docket.
Nobody is forcing this supermajority to discard the courts own precedent,
even precedent that was written by some of these same justices. Whether you
look at the courts nullification of Roe v Wade in Texas, its reversal on
questions of due process for Guantánamo Bay detainees, or the courts
180-degree turn on juvenile sentencing, this conservative supermajority has
made clear that precedent be damned.
By way of example, Justice Sonia Sotomayor wrote in her dissent in the
recent Jones v Mississippi case that the majority decision distorted the
courts previous decisions in Miller v Alabama and Montgomery v Louisiana
beyond recognition in order to justify reimposing juvenile life without
parole. The court rejected its own decisions in cases decided just nine and
five years ago respectively. When precedent is so blatantly ignored, it is
difficult to explain the courts change in direction but for politics.
Nobody is forcing the court to willfully ignore the racially disparate
impact of voter suppression laws, pretending that the election of one
non-white president means people of color have equal access to the ballot
box despite all evidence to the contrary. Our right to self-government,
achieved through a meaningful right to vote, is in serious jeopardy because
this court continues to turn a blind eye.
Nobody forced Justice Amy Coney Barrett to speak at an event hosted by
Senator Mitch McConnell, the very senator responsible for jamming her
confirmation through the Senate while a presidential election was under way.
At this event, Justice Barrett was proudly introduced by Senator McConnell,
and then quickly stated that her goal was to convince the audience that the
justices are not just political hacks.
Such a claim of ethical clarity just isnt credible when it is uttered on
stage right next to the person most responsible for the partisan
gamesmanship that packed the court. What Justice Barrett did succeed in
doing with her remarks is to confirm just how closely justices listen to the
public narrative about the court and how sensitive they are to it.
The justices, through their own actions and words, have demonstrated their
vulnerability to public pressure in support of court reform. Turns out,
justices do not like being told they have no clothes on.
As the court delves into its new term, it should have no doubt that all eyes
will be upon it. If they want to escape it, rather than hoping the press
will be cowed into submission, the justices of the court might consider
fulfilling the mission of the institution they embody, by upholding
constitutional rights and respecting judicial norms.
