As Americans’ trust in their country’s institutions has fallen, from government to religion to the media, one institution where approval held up was the U.S. Supreme Court. A 2020 Gallup Poll taken about the time when Justice Ruth Bader Ginsburg died, registered a 58 percent favorable rating.
No more. A Gallup survey late last year showed the Court’s approval rating down to 40 percent, with disapproval up to 53 percent. A Marquette University poll likewise showed a 20 percent falloff, down to 44 percent.
A politicized, right leaning Court has forfeited credibility. Just look at its rulings. The justices have eviscerated the 1965 Voting Rights Act. The 2010 Citizens United ruling nixed a century of effort, begun under Theodore Roosevelt to control campaign spending. The Thursday decision on the right to carry concealed weapons countermanded a New York law long on the books.
“It is, frankly, hard not to feel betrayed: The traditions that limit the power of judges to make law (out of) whole cloth include, first and fundamentally, respect for precedent,” wrote University of Southern California law professor Susan Estrich, after Justice Alito’s draft opinion rolling back Roe v. Wade leaked to the press.
Presidents used to pick Supreme Court nominees without an agenda or interest group blessing. Two picks by President Eisenhower, Earl Warren and William Brennan, were outspoken progressives. The first choice of President Kennedy, Byron “Whizzer” White, was a conservative and one of the two dissenters on Roe v. Wade. A trio of Republican appointees defined abortion rights in the Webster opinion.
The Court’s loss of credibility is rooted in three factors. The first is a heavy hand of politicizing. In a deal with the devil, the Christian right accommodated multiple character flaws of Donald Trump in exchange for selection of three Justices who’ve overturned Roe v. Wade. The Court has turned its back on stare decisis, and is blurring the distinction of church and state.
The second factor, dishonesty in the confirmation process. Two justices, Thomas and Kavanaugh, have faced credible allegations of sexual harassment and assault: In both cases, the Senate Judiciary Committee has sent nominations to the Senate floor without hearing witnesses and vetting the evidence.
During confirmation, Justices Kavanaugh and Gorsuch agreed in public and private that Roe v. Wade was settled law. In Kavanaugh’s words, cited Friday by Sens. Collins and Manchin: “Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences. I am a don’t-rock-the-boat kind of judge.”
“Both (Kavanaugh and Gorsuch) were insistent on the importance of supporting longstanding precedents that the country has relied upon,” Sen. Collins said in a statement.
The third factor, political manipulation. Senate Majority Leader Mitch McConnell refused, for nearly a year, even to hold a hearing on President Obama’s nomination of Judge Merrick Garland to replace the deceased Nino Scalia. When Ginsburg died, in the middle of the 2020 election, Senate Republicans rushed through the nomination of Judge Amy Comey Barrett in just over a month.
In Collins’ words, the result has been “a sullen and radical jolt to the country that will lead to political chaos, anger and a further loss of confidence in our government.” Or words of Sen. Manchin, the lone Democratic vote to confirm Kavanaugh, “I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”
The Court’s loss of credibility is harmful to the nation. Polling by Gallup suggests that those saying they have “a great deal or a fair amount of confidence” in the federal judiciary have fallen from 67 percent in 2020 to 54 percent.”
Shortly before her death, Justice Ginsburg spoke of what has been lost. “My hope is we will get back to the way it once was, that kind of collegiality, good relationships, people who liked and respected each other even though they disagreed on some important questions.”
It is hard to like or respect this Court.