The Supreme Court Fails These Three Measures of a Justice System

The precipitous decline in public approval of the US Supreme Court from 58% in 2020 to 40% in 2023 is ominous for a legal system that ultimately relies on public buy-in—but it’s understandable.

The Supreme Court is the head of our federal legal system—often thought of as our justice system—but it’s falling short on the standards of justice.

While many equate justice with specific verdicts, a properly working court doesn’t guarantee a given outcome. Instead, courts are meant to offer a just process.

The reason we have a legal system is, ultimately, to stop people from solving disputes with violence. In a modern democracy, courts exist to provide an impartial process of accountability and dispute resolution.

For people to accept a court’s rulings—even when a harmed person is subject to an adverse ruling—a just legal system must meet three criteria.

First, everyone must have a chance to be heard. It is vital to let people tell their stories and have the opportunity to receive the outcome they think is fair.

Second, the same rules have to apply to everyone. And third, determinations must be made by a neutral decision-maker. The judge can’t choose the outcome based on who they like, who is their friend, or who gives them money.

These three criteria haven’t always been met in the US justice system. Take the murder of Emmett Till. The first criteria was met: His murderers were called to account through criminal prosecution. Famously, Emmett’s great-uncle pointed to the killers in the courtroom.

But the second criteria wasn’t met: The process was determined by the skin color of the victim and perpetrators. Key Black witnesses were threatened with death if they testified. The defense attorney told the jury in summation, “Your ancestors will turn over in their grave [if you don’t free the killers] and I’m sure every last Anglo-Saxon one of you has the courage to free these men.”

And the third criteria wasn’t followed either: The jury was all-White, chosen by a White lawyer before a White judge, in the Jim Crow South. The courtroom was controlled by the local sheriff, who greeted the black press table with the N-word every morning. The jurors were told by the sheriff-elect to take some time before returning to make “it look good.” The unjust outcome came about because the process was unjust.

When there is such an unfair legal process, sometimes it can spawn a movement, like the civil rights movement in the 1960s. But sometimes it leads people back to attempting to resolve disputes through violence, as in the 1992 riots in Los Angeles following the acquittal of police officers who beat Rodney King.

Today, the Supreme Court isn’t meeting the three criteria for a just legal system.

A Chance to Be Heard

The Supreme Court is denying a chance to be heard by bypassing its ordinary process of briefing, oral argument, written decision-making, and justice attribution more often. These elements are essential to transparency, accountability, and the rule of law, but the “shadow docket” creates a shortcut.

That shortcut process has been shown to be partisan. There were dozens of decisions where the court used the shadow docket to step in to immediately reinstate decisions by the Trump administration that were legally challenged. It hasn’t done the same for the Biden administration. Studies have shown the shadow docket is used to favor the court’s ideological allies.

What the court is failing to decide is also telling. Arguably, its most important role is to ensure the two other branches are elected by fair and proper process. If that’s done, any other failure can be fixed through the political process, which will be responsive to the people. In Rucho v. Common Cause, the court admitted partisan gerrymandering is “inimical to democracy,” yet said it won’t intervene to level the playing field.

Same Rules Apply to All

For the same rules to apply to everyone, the rules can’t be made up case-by-case. Stare decisis—the court’s principles for following its own precedent—demands that rules developed for one party must apply to others, unless there’s a principled reason for not doing so.

Dobbs v. Jackson Women’s Health was revolutionary: In overturning Roe v. Wade, it was the first time a constitutional right was simply abolished.

But Dobbs didn’t just overrule Roe—it also overruled Planned Parenthood v. Casey, which laid out the rules for respecting stare decisis. Casey set a high bar, requiring the old rule be unworkable, not much relied upon, anachronistic, and irrelevant. Dobbs clearly didn’t meet that standard, so the court simply abolished the rule laying out when the rules apply. And replaced it with nothing.

Heard by a Neutral Decision-Maker

Supreme Court neutrality seems laughable after the revelations this year. Justice Clarence Thomas has received innumerable gifts from people with business before the court. These include numerous destination vacations, private jet flights, multiple property deals, a multi-hundred thousand dollar “loan” to purchase a luxury motor coach, and private school tuition for his grand-nephew—whom he has raised like a son.

Several justices have been caught up in their own financial scandals. None have condemned their colleagues for taking gifts, or for breaking the law in failing to disclose them. Instead, the justices closed ranks, issuing a joint statement opposing further oversight.

And the lack of neutrality isn’t just apparent in what the justices do in their spare time. The justices are selective in their jurisprudence, differentiating even between constitutional rights, protecting those they favor and undermining those they oppose.

Religious freedom rights have been vehemently protected—often using the shadow docket to step in immediately. But the separation of church and state is being whittled away.

Second Amendment rights and free speech rights are strictly enforced, while rights applying to criminal suspects are mostly treated dismissively.

People may not be rioting in the streets, but this court is losing its legitimacy, the bedrock upon which the judiciary rests. In recent years, we have witnessed the erosion of many democratic institutions; sadly, the court appears to be the latest casualty in this ongoing crisis.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.

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