WASHINGTON – Three Supreme Court justices have delivered the same plea in quick succession in recent days: Don’t think of judges as politicians.
The judges are right to be concerned. Recent polls show a sharp decline in approval for a court now dominated by the Conservatives.
The call by Justices Clarence Thomas, Stephen Breyer and Amy Coney Barrett that the public not view court decisions as simply an extension of partisan politics is nothing new. But the timing of the recent comments is significant, just after a summer in which conservative majorities in court prevailed over liberal dissent over abortion, immigration and deportations, and at the start of a successful tenure.
The future of abortion rights and the extension of gun rights and religious rights are already on the agenda. Other contentious cases could be added. Anyone’s outcome could fracture the tribunal along ideological lines, with the six conservative tribunal judges chosen by Republican presidents winning over its three Democrat-appointed liberals.
For some observers, the Supreme Court faces the most serious threat to its legitimacy since its decision in Bush v. Gore two decades ago who split liberals and conservatives and effectively settled the contested 2000 presidential election in favor of Republican George W. Bush.
“I think we may have come to a turning point. If, in the span of a few terms, we see radical right-wing decisions over left-wing dissent on each of the most politically controversial issues of our time – voting, guns, abortion, religion, affirmative action – the perception of the court can be changed permanently, ”said Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University.
Paul Smith, who has argued in court for LGBTQ and voting rights, among others, said people were increasingly upset that “the court is well to the right of the American people in many Questions”.
But opinions on the court have already plunged, and then rebounded, from an audience that doesn’t pay too much attention to the work of the court and struggle to identify most of the judges.
Tom Goldstein, the founder of the court-focused SCOTUSblog website that is frequently argued before judges, doubts it will be any different this time around. He says the court “has amassed a huge source of public respect no matter what.”
Yet Thomas, Breyer and Barrett have targeted the perception of the court as politics in recent speeches and interviews.
Breyer, the oldest member of the tribunal at 83 and leader of his diminished liberal wing, has spoken for years of the danger of seeing the tribunal as “junior politicians.”
But he acknowledged that it can be difficult to counter the perception that judges are acting politically, especially after cases like the one in Texas in which the court refused by 5 votes to 4 to block the application of the ban. state on early pregnancy abortions. The majority consisted of three judges appointed by President Donald Trump and two other Tories, with the three Liberals and Chief Justice John Roberts dissenting.
“It’s pretty hard to believe, when a case like this arises, that we are less divided than you might think,” Breyer said in an interview earlier this month with The Washington Post.
Barrett echoed Breyer’s comments soon after.
“My goal today is to convince you that this tribunal is not made up of a bunch of partisan hacks,” the Trump candidate said at a conference in Louisville, Kentucky, at a center named in the honor of Republican Senate Leader Mitch McConnell of Kentucky, who sat on the stage near Justice.
McConnell crafted Barrett’s quick confirmation just days before last year’s presidential election and just over a month after the death of liberal icon Judge Ruth Bader Ginsburg. Barrett’s confirmation was arguably the most political of all the members of the court. It was confirmed by 52-48, the first in modern times without the support of the minority party.
McConnell’s pressure to confirm Barrett in the final days before the election contrasted with his decision to retain the seat occupied by Judge Antonin Scalia when Scalia died months before the 2016 election and President Barack Obama, a Democrat, brought sought to appoint a replacement. .
In an appearance days after Barrett’s, Thomas said the judges themselves were to blame for the court’s shift in perceptions of taking on roles that rightfully belong to elected officials. “The court was considered the least dangerous branch and we have become perhaps the most dangerous,” he said at the University of Notre Dame, where Barrett taught law for many years.
- RELATED: Clarence Thomas makes rare public speech and criticizes judges for turning to politics
Three new polls, all conducted after the Texas abortion court vote, showed a sharp drop in court approval. Only 40% of Americans approve of court, according to the latest Gallup poll. This is one of the lowest since Gallup started asking this question over 20 years ago. The approval was 49% in July.
The change in the composition of the tribunal and the controversies over the three Trump candidates have prompted liberal interest groups to expand the tribunal and institute term limits for judges, who have a life term under the Constitution. .
At the moment, these changes seem unlikely to be successful. But one group, Demand Justice, said last week that it planned to spend more than $ 100,000 on advertising in the coming weeks to promote the idea of expanding the courts. And a court reform commission established by President Joe Biden is expected to issue a report by November.
Some court observers believe that the efforts of liberal groups, rather than the actions of the court, are responsible for changing the judges’ perspective.
“I think there is a sustained campaign to delegitimize the court which has been successful on the left,” said Roman Martinez, a Washington lawyer who regularly pleads in court.
At one point, most judges spoke about the importance of the tribunal maintaining its legitimacy and the need for judges to rise above partisanship.
“Each of us must realize how precious the legitimacy of the Court is. You know we don’t have an army. We do not have money. The only way to get people to do what we think they should do is because people respect us, ”Justice Elena Kagan said at an event at Princeton University at the time. of Kavanaugh’s confirmation.
Months later, Roberts stood up for judicial independence, but he did so to fight criticism from Trump’s judges. After Trump described a judge who ruled against him as a biased “Obama judge,” Roberts memorably tangled with the president.
Roberts said, “We don’t have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges who do their best to make equal rights to those who appear before them. “
Mark Sherman and Jessica Gresko of The Associated Press wrote this story.
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