Tuesday, September 28, 2021
Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.
A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.
Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.
Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.
Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.
Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.
Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.