The Supreme Court vs. the Court of Public Opinion

The Supreme Court vs. the Court of Public Opinion

Editorial credit: Erik Cox Photography / Shutterstock.com

By Peter Schurmann, EMS

While SCOTUS is the highest court in the land, public trust in the institution has never been lower.

There’s an old joke in DC about how Supreme Court Justices make the worst dates. They won’t take gifts and so insist on paying, but they don’t make that much money, so they choose the cheapest restaurants. (Cue drumroll!)

You’d be forgiven for not knowing that, based on the string of revelations about previously undisclosed luxury retreats and rolling mansions that some on the bench now enjoy.

The reality is that while SCOTUS is the highest court in the land, public trust in the institution has never been lower, one reason why on Monday the court released a code of ethics that many say does little to remedy the situation.

Recent decisions, meanwhile, on issues ranging from abortion to gun and voting rights show in sharp relief how the court and the opinions of a majority of the American public are moving in near diametrically opposite directions. And, according to Senator Sheldon Whitehouse (D-RI) and Michael Waldman, president of the Brennan Center for Justice, that’s by design.

“The court has been an agent of its own reputational destruction,” said Whitehouse, co-author of a bill that would impose 18-year term limits on sitting justices. (The US is among just 5 countries with life tenure for the highest court.)

Capturing the court

Speaking at a recent event co-hosted by the Brennan Center, Whitehouse described a decades-long effort from the right to achieve what’s known as “regulatory capture,” a term that harks back to the Gilded Age of the mid-19th Century when railroad barons sought to stack the commission overseeing the nation’s railroads with “cronies and friends.”

Fast forward to today, and that same strategy is now being applied to the Supreme Court.

“Some very big special interests are upset because they can’t operate in an open democratic world, so they went dark to capture the court,” said Whitehouse, tracing the origins of this latest hostile takeover of the court to the 1971 Powell Memo that laid out in detail ways for corporate interests to reassert control over the political arena.

“These same billionaires are now enmeshed in the controversies involving Supreme Court judges,” Whitehouse added. “When you see the court’s records and the dark money around it, it’s hard to argue this is a legitimate court following traditional judicial principles.”

Whitehouse points to the recent West Virginia v EPA ruling as an example of how these special interest groups work to shape law and public policy. In its 6-3 decision, the court essentially gutted the regulatory agency’s ability to protect Americans from environmental pollutants. The ruling was based on an unprecedented judicial concept known as the Major Questions Doctrine, which argues a federal agency’s authority does not extend to issues of major political or economic significance.

“These words have never been used by the court before,” Whitehouse said. “You see dark money think tank and academic areas where this notion was planted, fertilized, propagated and then pushed out and these judges picked it up.”

Whitehouse called the case a “dangerous example” of the court’s interference in the government’s ability to protect Americans.

A growing backlash

Michael Waldman, whose book, “The Supermajority: How the Supreme Court Divided America,” examines the first year of the court under its current conservative majority, says the justices are “working aggressively to change the reading of the constitution and thus the country.”

Alongside the West Virginia case, he highlights two others, the Dobbs ruling overturning Roe v Wade and the Bruen decision, which said states can only consider “history and tradition” dating back to the time of the founders and not current safety concerns when it comes to regulating gun rights.

“Does this sound like a court or like the caucus of a political party,” Waldman quipped, noting there are inherent structural issues that make the court susceptible to capture. Yes, he says, the court’s structure was designed to insulate justices from undue political influence. Yet the court’s makeup is almost entirely driven by election outcomes for Congress and the Presidency. 

“One political party has won the popular vote in 7 of the last 8 presidential elections,” explained Waldman, “while the other party has chosen 6 of the last 9 justices. The last time the Democrats appointed the court majority was 1970. The last time Democrats appointed a Supreme Court justice was 1946.”

Both Whitehouse and Waldman agree that there is now a rising groundswell of opposition to the court’s recent tilt to the right, and they stress that any reform efforts – imposing term limits and introducing biennial appointments, for example – cannot and should not run ahead of public opinion.

“The idea has to be put out there,” said Waldman, noting that for decades conservative groups worked assiduously to make issues like Supreme Court appointments kitchen table issues while those to the left tended to dismiss these more procedural questions in favor of broader causes.

“This is a kitchen table issue,” Waldman stressed. “The most significant constitutional change comes in the court of public opinion.”

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