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Analysis | The Supreme Court lost the benefit of the doubt

Remark

There are two Washingtons.

There is one that populates elementary school textbooks, in which the three branches of government zealously and honestly compete for power, eyes fixed on the best possible outcome for the American republic.

Then there’s the one that appears in the papers, the ones in which the attention of elected officials is diverted by fundraising goals and 24-hour news cycles and ambition – and those are the least nefarious options. “Mr. Smith Goes to Washington” is a heartwarming movie, but the message is that overcoming corruption is an exception in our nation’s capital.

For years, the Supreme Court has been quite effective in portraying itself as residing in that first Washington, the idealistic. Members, after all, sat for life, indifferent to the vagaries of public opinion and immune to the need to raise campaign contributions. It heard arguments from lawyers, evaluated those arguments and came to an advice.

This is the perception that Chief Justice John G. Roberts Jr. has diligently defended: that his court maintain its impartiality. Even as the strengthening conservative majority expanded its objectives, Roberts insisted that the court act only within its traditional, rigid—conservative, you might say—boundaries. But that argument is increasingly difficult to defend, and Americans are increasingly likely to reject it.

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Over the weekend, the New York Times revealed that the May leak of a draft advisory in Dobbs v. Jackson Women’s Health Organizationthe decision that was overturned Roe against Wade, was not the first leak of a result. In 2014, a couple dined with Judge Samuel Alito, the newspaper reported, apparently telling them the judge would write an opinion in Burwell v. Hobby Lobby Shops supporter of Hobby Lobby. This was conveyed to a conservative activist named Rob Schenck, and was reinforced by contemporaneous emails. Alito denied that he or his wife made the opinion public beforehand.

Alito, also the author of the leaked Dobbs opinion, has been almost as fervent as Roberts in defending the impartiality of the court. He attacked members of the media critical of the operation of the court and haughtily objected to questions about the integrity and politicization of the court. He is also the second most conservative member of the court.

The most conservative is Judge Clarence Thomas, who was at the center of another swirl of questions. His wife, Ginni Thomas, was involved in efforts to overturn the 2020 election, including attending the rally outside the White House on January 6, 2021. Thomas was also the only voice in support of protecting White House data Trump House against scrutiny by the House select committee investigates the riot at the Capitol on that day.

The indirect connection to activism revealed by Ginni Thomas’s engagement echoes perhaps the most important part of the Times report on Alito’s activities in 2014. The couple he dined with were donors specially recruited by Schenck to involve Supreme Court justices in social activities.

He “recruited wealthy donors like Mrs. Wright and her husband, Donald” — the pair at that dinner — “and encouraged them to invite some of the judges to meals, either at their vacation homes or at private clubs,” the Times reported. “He advised allies to contribute money to the Supreme Court Historical Society and then interfere with judges during its functions.”

Described the judges as “responsive” to the outreach? Alito, Thomas and the late Antonin Scalia.

Again, this is not the perception of the Supreme Court that Roberts would like the public to have. None of this is to suggest that the intertwining of activists and judges is new, because it is not. What is new, however, is that a judge is at the center of two reported leaks, that another judge’s husband has worked to overturn the results of a presidential election, and that this of course overlaps with those judges who are part of a majority that is so actively reforms the precedent and supports one ideological domain.

The problem is not that the court is conservative. The problem is that the court seems to have become caught up in the politics it claims to be over – turning the lack of accountability that was meant to preserve the court’s objectivity into a defensive moat that allows judges to behave as they see fit.

Earlier this year, Gallup reported that public confidence in the court had reached a new low in half a century. This was largely a function of Democrats who viewed the court with new skepticism given the leak of the Dobbs decision and the measurable shift to the right of the court.

However, what’s interesting about Gallup’s data is that the court’s perception has generally followed with confidence in the presidency. The percentage of Americans who said they had “a lot” or “quite a lot” of confidence in each of them was in the 1940s through much of the 1980s and 1990s. By the second term of the George W. Bush administration, they had both sunk into the 1930s. By 2022, they had all sunk into the 20s.

Congress, meanwhile, has been in its teens for more than a decade.

But while court and White House perceptions have converged, the triggers for the move vary. Attitudes towards the presidency are heavily influenced by partisanship, with members of an incumbent president’s party having a lot of faith in that presidency and members of the out party having very little. That results in a wide partisan divide.

There is much less of a divide in the court’s views, as is the case with Congress. Republicans and Democrats both generally dislike Congress, in part because there are opposition party leaders who find each objectionable. But the court’s views were much less strained by partisanship — until 2022. The party gap is over 25 points at this stage, with Republicans much more positive than Democrats about the court.

It is certainly possible that perceptions of the court will recover and be less colored by partiality. But, unlike the presidency or even Congress, there are no elections where the court can be reformed. Democratically elected officials called for the court to implement rules about ethics and conduct that, thanks in part to textbook Washington perceptions of the court, do not exist to a robust extent.

Of course, that wouldn’t change the frustrations with how the court decides – which is the central reason for Democratic skepticism. Conservative activists like Schenck got what they wanted from the court. So did Donald Trump, who was trying to perform for his conservative base. There was a specific, energetic effort to create a court that would be beneficial to the political right. That court has arrived – and is being cemented in place until the judges retire or die.

And that in itself is why the court’s laborious attempt to present itself as someone above the fray will not work. The forces that formed the court pushed to create one that would not standing above the struggle, but instead responding to the cultural moment. In all likelihood, they were successful.

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