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Move to Scrap Roe Opens Justices to ‘Politicians in Robes’ Label

May 13, 2022, 4:10 PM

The Supreme Court increasingly risks being treated like a political institution as a conservative majority of justices prepare to overturn its landmark Roe v. Wade abortion ruling.

The leak of a draft majority opinion this month is just the latest potential threat to an institution whose legitimacy relies largely on the public perception of it as a neutral arbiter of the law.

“Without that basic social contract in place, my gravest concern is that we will no longer view what the Court decides as legitimate” and people will stop listening to it, Cornell law professor Jared Carter said about the public’s view of the justices.

The conservative bloc’s willingness to overturn a 49-year precedent less than two years after its newest member, Amy Coney Barrett, replaced liberal justice Ruth Bader Ginsburg leaves the court open to being seen as ready to change course whenever its makeup shifts, regardless of past decisions.

The court, which historically has enjoyed the highest approval ratings of the three branches of government, has seen trust slip in recent polls. Public support has grown for once-unpopular moves, such as term limits.

Diminished Confidence

Three justices, from the liberal-leaning Stephen Breyer to the more conservative Clarence Thomas and Barrett, have spoken publicly about the dangers of the court being seen as a political body.

“If the public sees judges as politicians in robes, its confidence in the courts—and in the rule of law itself—can only diminish, diminishing the court’s power, including its power to act as a check on the other branches,” Breyer said in an April 2021 speech.

In the abortion case, only 20 months have passed since Trump replaced Ginsburg, a liberal icon, with Barrett. The leaked draft published by Politico suggests Barrett provided conservative justices the fifth vote they needed to overturn Roe.

Any abortion case at the court is polarizing. Florida State University College of Law professor Mary Ziegler said the rapid change has the potential to exacerbate the growing public distrust in the institution.

“If the court is concerned about polarization, it’s not to me clearly acting that way,” Ziegler said.

Goodwill Erodes

There are already signals that public goodwill toward the Supreme Court is slipping.

According to Gallup, only twice has the number of Americans who say they have a “great deal” or “fair amount” of trust in the judiciary dipped below 60%. Its latest poll, from September 2021, has that number at 53%.

And the leak appears to have made it worse.

Public opinion of the Supreme Court turned negative with 52% of Americans disapproving of the court’s work, according to a Monmouth University poll released May 11. Two months earlier, the court had an evenly divided rating of 42% approve to 42% disapprove.

Growing public distrust could fuel support for changes to the court’s makeup and membership. A C-SPAN poll from March found 69% of Americans support term limits, and even more—72%—support an ethics code for the justices.

“The public appears to want reforms with how the Supreme Court is set up,” Carter said.

Term limits and expanding the court are ideas pushed aggressively by liberal groups such as Demand Justice and embraced by progressive lawmakers. Conservatives say that amounts to a concerted campaign to undermine the court and its legitimacy.

Others say the justices bear responsibility. Missteps “appear to have pulled the Supreme Court into the divisive political atmosphere that currently pervades the Country,” Carter said.

One episode that emboldened calls for a mandated ethics code was news that Thomas participated in a case about the disclosure of documents related to the Jan. 6 attack on the Capitol, even though his wife, Virginia, had communicated with Trump White House chief of staff Mark Meadows in the days before the riot. Thomas was the lone vote saying the documents shouldn’t be turned over.

Slow Build

Court watchers say a combination of factors have led to the steady decline in public perception.

Gabe Roth, who heads the watchdog group Fix the Court. said the justices over the past couple of decades have had no trouble deciding political issues like voting rights, healthcare, and marriage, even though those issues were probably best left to the other branches.

At a Notre Dame speech in September, Thomas appeared to agree, saying that the judiciary is partly to blame for public criticism because it has sometimes ventured “into areas we should not have ventured into.”

Roth also pointed to the increasingly political nature of the Supreme Court confirmation process, including the GOP’s blockade of President Barack Obama’s pick of Merrick Garland to replace conservative Justice Antonin Scalia.

During oral arguments in December in Dobbs v. Jackson Women’s Health Center, the case that could undo the Supreme Court’s abortion precedents, the more liberal justices suggested they were concerned about the impact of an opinion overturning Roe on attitudes toward the court.

‘Survive the Stench’

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor said. “I don’t see how it is possible.”

Stare decisis, the legal doctrine suggesting previous case law should not be lightly overturned, is important “to prevent people from thinking that this Court is a political institution that will go back and forth depending on what part of the public yells loudest and preventing people from thinking that the Court will go back and forth depending on changes to the Court’s membership,” Justice Elena Kagan said.

Justice Brett Kavanaugh suggested during the argument that overturning Roe v. Wade should actually increase public faith in the court.

Because the Constitution is neutral on it, “this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life,” Kavanaugh said. “We should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue,” he said, summarizing anti-abortion arguments.

In a May 12 Federalist Society teleforum, Berkeley law professor Daniel Farber noted that the draft opinion appears to go out of its way to decide issues that the justices don’t need to reach in order to resolve the case.

“I can’t think of another example of the court not only going really more broadly on the issue before it than it needs to, but also ruling on issues that are remotely involved in the case,” Farber said.

University of Virginia law professor Richard Re said he too wonders about the risk that the “Supreme Court isn’t creating enough distance between its rulings and the wishes of the political party that has selected most justices.”

He said that’s even more of a risk given that “the newly composed Court is apparently moving almost as fast as possible to change its precedents.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com

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