Sunday, November 14, 2021
In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court. The public’s declining confidence in the Court, and the resulting threat to the Court’s institutional legitimacy, is attributable in substantial part to several factors.
1. The Court’s decisions are perceived as political and outcome-driven.
In several landmark decisions involving divisive social issues, the Court has disregarded or manipulated the Constitution’s text to achieve outcomes that arguably reflect the justices’ policy predilections. In Griswold v. Connecticut, for example, the Court held that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property without due process of law,” encompasses a substantive – and unenumerated – right to privacy. In so holding, the Court stated that, although a literal interpretation of the Due Process Clause did not support creating this right, the Constitution nonetheless contained invisible “penumbras,” that are “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.” It was within these penumbras that the Court discovered a right to privacy.
In other words, the Court singlehandedly created an unenumerated right to privacy out of thin air.
To make matters worse, in Roe v. Wade, the Court held that the unenumerated right to privacy encompassed a right to terminate a pregnancy. Regardless of one’s view on abortion, the Court’s decision, as in Griswold, entirely disregarded the text of the Due Process Clause and instead discovered this right in the invisible penumbras that Griswold created. The result reflected a troubling reality: the Court, consisting of nine unelected and life-tenured judges, was giving itself the unchecked authority to invent whatever rights it subjectively deemed necessary to ensure liberty for all citizens. These and other decisions were rightly perceived as fundamentally undemocratic and inconsistent with the judiciary’s obligation to say what the law is, not what it should be.
Additionally, in Planned Parenthood v. Casey, the Court, in a 5-4 decision, reaffirmed Roe, although the Court acknowledged again that the Due Process Clause’s text did not support recognizing a right to abortion. Undeterred by the text, however, the Court supported its decision by emphasizing that “[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Apart from being based on no reasonable interpretation of the Due Process Clause, the Court’s decision – and this passage – indicated that the Court would in the future unapologetically create whatever unenumerated rights it deemed essential to liberty – and impose that judgment on all fifty states.
The Court’s decisions were intellectually dishonest, constitutionally indefensible, and outcome-driven. This is a recipe for undermining public confidence in the Court.
Furthermore, some of the Court’s 5-4 decisions often conveniently align with the justices’ political views. For example, in its abortion and affirmative action jurisprudence, the ‘liberal’ justices often, if not always, vote to invalidate abortion restrictions and uphold affirmative action policies, while the ‘conservative’ justices predictably disagree. The impression, of course, is that politics, not law, underlies the Court’s decisions.
2. The Court gets involved in disputes that the democratic process should resolve.
The Constitution says nothing about abortion.
It says nothing about same-sex marriage.
It says nothing about whether money constitutes speech.
It says nothing about whether imposing the death penalty for child rape is cruel and unusual.
Yet, the Court has repeatedly injected itself into these disputes – and determined for all fifty states – what the Constitution means and requires. In so doing, the Court’s decisions, which in the above areas are almost always decided by a 5-4 vote, undermine democratic choice.
3. The Court fails to defer to the democratic process when the Constitution is ambiguous.
The Constitution’s text is often broadly worded and subject to different interpretations. In these circumstances, the Court should defer to the democratic and political process, not intervene and impose its interpretation on an entire country.
For example, in Kennedy v. Louisiana, the Court considered whether a Louisiana law, which authorized the death penalty for the rape of a child, violated the Eighth Amendment’s Cruel and Unusual Punishment Clause. Based on the Eighth Amendment’s text and original purpose, reasonable jurists could reach different conclusions on this question. Put differently, the Eighth Amendment provided no definitive answer regarding the law’s constitutionality. Given this fact, the Court should have deferred to Louisiana’s democratic process and refused to grant certiorari. Instead, the Court intervened and, in a controversial 5-4 decision, invalidated the law.
Likewise, in Clinton v. New York, the Court addressed whether the Line Item Veto Act, which both houses of Congress passed, and which allowed the President to amend or repeal portions of duly-enacted laws (primarily to reduce excessive spending), violated the Constitution’s Presentment Clause. The Presentment Clause was broadly worded and, thus, subject to different interpretations concerning the line-item veto’s constitutionality. Nonetheless, the Court intervened and, in a 6-3 decision, invalidated the Act.
Who is to say that the Court’s interpretation of a broadly-worded provision is any more correct than that of federal or state legislatures? Indeed, as Justice Stephen Breyer argued in his dissent, the Act did “not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”
4. The justices’ reasoning in many cases is inconsistent and suggests that politics, not law, drive their decisions.
Inconsistent and uneven application of doctrine and precedent is certain to undermine public confidence in the Court. Yet, that is precisely what some of the Court’s decisions reflect.
For example, in National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts provided the fifth vote to uphold the Affordable Care Act. In his opinion, Chief Justice Roberts held that the Affordable Care Act’s individual mandate could reasonably be construed as a tax and was thus justified under Congress’s taxing powers. Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.
Fair enough. That approach is reasonable – if applied consistently.
Unfortunately, however, that is not the case. In Shelby County v. Holder, for example, Roberts joined a five-member majority to invalidate portions of the Voting Rights Act that had been re-authorized by a unanimous 99-0 vote in the Senate.
Now, there may certainly be justifiable reasons that could explain Roberts’ different approach in both cases. But those reasons, particularly when not apparent from the Court’s decisions, do little, if anything, to affect the perception that politics, not law, motivates the Court’s decisions. And perception is reality.
Additionally, the Court’s toxic, on-again, off-again relationship with stare decisis raises similar concerns. For example, in June Medical Services v. Russo, Chief Justice Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges.  In so doing, Roberts emphasized that his decision rested on stare decisis principles, as the Court in Whole Woman’s Health v. Hellerstadt had recently invalidated a nearly identical law in Texas. 
Yet, Roberts has not been shy about disregarding stare decisis when he disagrees with a prior decision. For example, in Janus v. AFSCME, Roberts voted with the majority to overrule Abood v. Detroit Bd. of Ed., and hold that labor unions could not collect fees from non-union members. Of course, there may be an understandable reason for Roberts’ inconsistent application of stare decisis. But to the public, it appears that stare decisis is a doctrine of convenience rather than conviction.
The public’s confidence in the Court – and the Court’s institutional legitimacy – depends on whether its decisions reflect an honest interpretation of the law and fidelity to constitutional and statutory text. The Court’s recent jurisprudence suggests that other factors are influencing its decisions, including a desire to reach outcomes that the Court believes will maintain its legitimacy. But that concern is precisely what leads the Court to make decisions based on political calculations, the effect of which is to undermine the very legitimacy the Court seeks to preserve. The path to restoring public confidence in the Court is through intellectual honesty, reasonable interpretations of the Constitution, and consistent application of legal doctrines.
 See Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (Sept. 23, 2001), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
 381 U.S. 479 (1965).
 Id. (emphasis added) (brackets added).
 410 U.S. 113 (1973).
 505 U.S. 833 (1992).
 See id.
 554 U.S. 407 (2008).
 524 U.S. 417 (1998).
 567 U.S. 519 (2012).
 See id.
 See id.
 570 U.S. 529 (2013).
 591 U.S. , 2020 WL 3492640 (2020).
 579 U.S. 582 (2016).
 138 S. Ct. 2448 (2018).