I don’t know where you’re getting your numbers.
And this was before any of their current rulings, which are even more off the bubble.
Not sure if this is what you mean, but taking gifts is nothing new. 2016 news:
Some of this was paid by their publishers, but I think they didn’t recuse themselves from copyright cases their publishers cared about.
That’s a good point Alito and Thomas clearly don’t care and have embraced lifelong tenure and lack of oversight completely. Roberts seems bothered by it, but not enough to do anything about it.
I see there is a big percent difference if you ask about disapproval or distrust. If it turns out that 80 percent is against the court for progressive reasons, I do think there will be a Democratic landslide next year and a change to the court.
Did you notice your cite is from September 2022? That’s a long time ago, under the current circumstances.
If that is what was meant by the OP, I agree with you. They currently have nothing to fear unless public opinion becomes so incensed that large majorities change the makeup of Congress such to favor changing laws that will affect them. A remote possibility at the moment.
There are a number of things that an angry enough majority could do to reign in an unpopular Supreme Court. There’s actually very little in the Constitution regarding the structure and powers of the Supreme Court – in fact the entire structure and funding of the federal judiciary is created through Congressional statutes.
Court packing is one option that gets routinely brought up and would only require Congressional majorities (including 60 votes in the Senate or the abolition of the filibuster) and the President’s signature. Congress has the power (the Exceptions Clause) to limit what cases may come before the Supreme Court on appeal. The entire budget for the Supreme Court is provided through Congressional appropriations – Congress could slash the court’s budget so that Justices cannot afford clerks, staff or technology (although constitutionally they cannot reduce Justices’ salaries).
Congress could also take a run at eliminating lifetime tenure for Justices. The Constitution does not say that Justices serve for life – it says that they shall, “hold their Offices during good Behaviour.” That’s been interpreted as lifetime service absent an impeachment for “bad behavior,” but arguably a forced senior status would allow Justices to continue to “hold their offices” while allowing their replacement on the Court.
This is what I’ve been thinking, lately. The Supreme Court hears very few cases, and technically it’s only those cases that they actually decide. Most of their power comes from other courts recognizing the precedents set by the cases they do hear. But it’s quite common to argue that any given case doesn’t exactly correspond to the precedent, and should therefore be decided differently: Courts so rule all the time. And the wackier the Supreme Court gets, the easier it is for the lower courts to always say that the case before them is sufficiently different. A Court that does not recognize precedent will find their own precedents unrecognized.
The problem is not being unpopular, the problem is if the court or its rulings come to be seen as illegitimate.
Babale got to it before I could. It’s not about popularity, or even trust. It’s about legitimacy.
We all collectively agree to respect the rulings of the Court because we believe them to be arbiters of the law, separate from any political agenda. Now of course we know this is not strictly and literally true; everyone, inevitably, has preferences and beliefs. But for one to be elevated to the Supreme Court, there is a general consensus that such a person must be able to prioritize a neutral reading of the law over their personal ideology. In practice this ideal is rarely achieved, but it is the ideal to which the jurists are expected to strive, and it is from this ideal that the Court’s legitimacy derives.
We now have a Court which no longer even pretends to uphold this ideal. They have discarded the mask and are blatantly, nakedly pursuing their ideological checklist, full steam ahead. Their rulings don’t bother couching themselves in judicial principles and precedents or establishing rigorous legal tests. Look at Alito’s opinion in Dobbs which overturned Roe v Wade; he invents from whole cloth some hand-wavey bullshit about whether a practice is “deeply rooted in the nation’s history and traditions” and then uses that as a centerpiece argument in his conclusion. It’s laughable.
If the people of a nation do not have faith in the legitimacy of the legal system that it will set aside policymaking goals and interpret the law as neutrally and fairly as is reasonably possible, then the whole framework of the rule of law collapses.
This would be bad.
But how is that different from what came before? It seems just as easy — easier, even — to say that Roe involved inventing, from whole cloth, some hand-wavey bullshit about whether there’s a right to abortion in the Constitution; it was, as it were, laughable.
Isn’t the explicit claim in Dobbs that the Supreme Court got it egregiously wrong with Roe? And, if Justices conclude that such a decision, back then, was what you’re on about here — illegitimate policymaking, rather than a neutral reading — then what would a legitimate ruling be now?
As far as I’m concerned, accepting an appointment to the SC, or any court, requires a willing sacrifice, most notably of personal income, for the honor and the prestige of service. And a lifetime appointment signifies only that the nominee accepts that limitation only so far as he or she can tolerate the reduced income–he or she can always resign the position to assume a prominent and well-paid partnership in any lucrative law firm that wants him or her.
But these judges are getting it both ways–the honor and prestige and also the lifestyle of a powerful lawyer.
I am actually in favor of reducing their salaries, which are modest in comparison to what they could make in private practice, to emphasize the “public service” aspect of their jobs, as well as codifying a strict (and specific as well as completely transparent) code of ethics, a violation of which results in expulsion from the court.
Caesar’s wife, my ass. This would be a rudimentary initial step in restoring the popularity of the court.
The politicization of appointments and confirmations is another matter entirely. I put the starting point at George W. Bush’s ludicrous nomination of Clarence Thomas as the start of “sticking it to the libs”–Bush said in effect “You libs want a black person on the court–I’ll give you an unqualified conservative black man and I dare you to vote against him. If you do, we’ll run our next 12 campaigns on ‘Libs are the real racists!’ so have fun voting Thomas down.” Every nomination after that became a war, and this is where we are today, a SC that every decision faces a furious dissent from somebody.
I know the supreme court ignores the 9th amendment to the constitution but it is there:
- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Further, abortion was not deemed a right but rather, a right to privacy was at issue as they felt a right to privacy was implied in several places in the constitution. By that measure, a woman’s discussions with her doctor was deemed private and something for her, not the government to decide.
So, a right to an abortion was not yanked out of nowhere.
And this or that antiabortionist would doubtlessly say that refers to a right to, uh, not get aborted — even as others will say it includes the right to refuse to make a wedding cake for a gay couple, and yet others would say it includes the right to demand that someone make a wedding cake for a gay couple, or half a hundred other things — but, as you go on to say:
But that’s — what’s the word? — laughable. Seriously: what the hell could delegitimize the Court more than continuing to say, well, from an implied right to privately discuss X, surely you see it’s a straight line to being allowed to do X with as much publicity as you like?
It makes no damn sense; it never did; concerns about legitimacy would’ve required the Court to stop acting like the decision wasn’t egregiously wrong: by noting that it was, in fact, egregiously wrong.
Because the 80% of Americans have no way of removing those partisans every 2, 4, or 6 years.
It’s a bit of an odd OP question, or maybe just phrased a bit weirdly.
It’s like saying Why does it matter whether a moon-sized asteroid is heading towards the earth?
It definitely matters: the rulings matter, and the unpopularity matters. Both political parties are using a lot of the anger / delight at the recent rulings in their campaigns, and it was already a big issue in the midterms.
OTOH what can we do about it that’s a different point. Right now all we can do is get a democrat president in and hope (s)he gets to appoint more justices. We can also campaign to increase the number of justices, but this seems a long shot.
Okay, so here’s some teeth. In my experience, the courts in particular seem to prefer operating under “norms” rather than codified procedures (which they also have plenty of). So, although it would feel a bit unnatural for a judge to disregard a proposed SCOTUS precedent, it might feel less problematic if the precedent were rendered by a less legitimate-appearing SCOTUS, especially when the precedent in question is poorly supported. This comes back to me, the voter, because in many jurisdictions judges ARE elected and thus answerable to how they treat the SCOTUS rulings I may not agree with, whether my opinion is informed or otherwise. Good one.
But we’re already seeing that straight line. Now that Roe is repealed, we’re starting to see laws coming into effect, with things like criminal investigations for all miscarriages. And anyone who’s had a friend or relative who’s had a miscarriage can see how grave a violation of privacy that is.
Nitpick: It was George H W Bush who nominated Thomas. George W Bush nominated his personal lawyer. That nomination got laughed at so hard he withdrew it.
As far as politicizing the Court, it’s always been politicized to some degree, going back to the first appointees made by George Washington. But in the modern era, it’s gotten moreso starting with the rejection of Bork.
And do you believe that’s a reason to oppose those laws, and others you’d likewise argue against, at the ballot box? Or should we bypass that and strike them down, regardless of how people would vote, by declaring them unconstitutional?
Some things, of course, are unconstitutional. Some things, we figure aren’t really a matter for plebiscites, or even for elected representatives. Some, though, are the opposite of that. Which is this?