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 term.
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 ruling 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.
âI think we may have come to a turning point. If, in the span of a few terms, we see radical right-wing decisions on 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, âsaid 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 about the tribunal have already declined, and then rebounded, from an audience that doesn’t pay too much attention to the work of the tribunal and struggle to identify most 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 political 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 presents itself, that we’re less divided than you might think,” Breyer said in an interview earlier this month with The Washington Post.