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The Supreme Court’s reputation and legitimacy are in tatters. According to the most recent Gallup survey, 58% of Americans disapprove of the work of the Court, the highest ever. Why does the Court face such disdain?
The indisputable partisanship of the Justices is one big reason. The fiercely conservative approach to judging undermines the argument that Justices decide cases based on legal principles rather than politics or ideology.
When Justice Amy Coney Barrett announced that “We’re not a bunch of partisan hacks,” derision followed. The fact that the six conservatives on the Court are acolytes of the Federalist Society — the most conservative legal organization in America — and owe their judgeships in large part to support from that group is troubling but not surprising.
That half the conservative contingent was appointed by Ex-President Trump is also hard to ignore. And the rulings by these Justices are not only predictable but worrisome.
It has been over 100 years since a decision by a Court majority was so certain. Does anybody doubt the result of the Court’s upcoming Affirmative Action cases later this month? Despite Supreme Court precedents strongly upholding affirmative action programs in higher education, this conservative group of six will almost certainly hold such programs unconstitutional. As with the abortion decision in Dobbs v. Jackson Women’s Health Organization, the conservatives decide these cases not on any legal principle but because they can.
Ten Justices – Republicans and Democrats – over the years supported a woman’s fundamental right to an abortion, but the new radical majority labels the opinions of these Justices “egregiously wrong.” One could retitle the law school course in Constitutional Law as “Constitutional Politics.”
Too, the leak in February of the majority draft abortion opinion by Justice Samuel Alito overturning Roe v. Wade and the failed efforts to find the culprit didn’t sit well with many Court watchers, especially after the Justices themselves reportedly were given special dispensations from being interrogated aggressively or having to sign affidavits.
Also, of course, the ethical quagmire in which several of the Justices find themselves is unprecedented. Some look more like corrupt politicians than Justices of the highest court. Chief Justice John Roberts never even thought of disqualifying himself after his wife made millions of dollars recruiting top lawyers who argued cases before the Court. Justice Neil Gorsuch sold real estate property to the chief executive of a law firm that argued at least 22 cases before the Court but never disclosed the information which was legally required. Nor was the most conspicuously compromised Justice of all, Clarence Thomas, who was treated to millions of dollars in luxury vacations and lavish travel from a billionaire Republican megadonor who also renovated for free the home of Thomas’ mother and paid the tuition for a young man Thomas referred to as his son. Thomas never reported these expenditures, a violation of law, nor did he report the half million dollars in income his wife received from the conservative Heritage Society.
But for all the partisanship and ethics violations, far less attention has been given to the unprecedented dilution in the Court’s workload. It used to be commonplace for the Court each term to decide between 150 to 200 cases. This year the Court will decide fewer than 60 cases, fewer cases than the Court has handed down since 1864, in the middle of the Civil War. There has been a steep downward trend since Congress several years ago gave the Court exclusive discretion to manage its case docket and not have to accept any mandatory appeals. Since then, the Court has gradually reduced the number of cases it reviews annually. This reduction in its caseload gives the Justices an opportunity to write more bloated opinions — the five separate opinions in the Dobbs case total 205 pages.
Along with the reduction in cases in which the Court grants review is the significant upward trend in the Court’s so-called “shadow docket,” in which the Court disposes of cases often of overriding significance — abortion, congressional redistricting, COVID-19 vaccination mandates, restrictions on social media platforms — without having to read briefs, hear oral arguments, or have lengthy conferences. This new policy leaves more tedious judicial work to the lower courts.
The Court’s recent approach to judging appears either lazy or complacent, but it also has important consequences for Constitutional law. Far fewer cases involving important constitutional questions are now being decided, meaning that the lower courts have the last word, for good or bad. There are fewer criminal procedural cases on the docket, virtually no military appeals, and fewer death row interventions. Some might say this is good news — the less involved the Court is, the less damage it can do.
But the Court’s retreat from deciding more cases, and more important cases, tends to calcify Constitutional Law in areas that need reviewing. The Court looks like an imperial majesty, a privileged government institution that makes its own rules, does less work, cares little for transparency and the appearance of ethical uprightness, and is committed to serving the public responsibly. When the Chief Justice declined to appear before the Senate Judiciary Committee to discuss the ethics violations by members of the Court, he displayed contempt for our constitutional system of checks and balances, which can only heighten the public’s distrust of the Court.
If Congress fails to intervene aggressively, which Congress has the authority to do, the future of the Supreme Court and our Republic looks grim.
Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
This is an opinion piece. The views expressed in this article are those of just the author.