The Flawed Civic Understanding behind Attacks on the Supreme Court

By William C. Duncan

Tuesday, September 05, 2023

 

Americans are developing a distorted view of the proper role of the U.S. Supreme Court, thanks to an ongoing torrent of criticism from the press, politicians, and activist groups. To protect the constitutional order, it’s time for voters to reacquaint themselves with the true purpose of the nation’s highest court.

 

Utah senator Mike Lee (R.), speaking at the Sutherland Institute Congressional Series in August, pointed out that “structural protections in the Constitution” are often overlooked but provide a bulwark against dangerous concentrations of power. The Court, when it carefully adheres to its proper role, is one such protection.

 

Unfortunately, in attempting to stay true to its proper role, the Court has drawn intense criticism, particularly after the Dobbs v. Jackson Women’s Health Organization decision, in which the Court returned the authority to regulate abortion to the states. After a draft of the decision was leaked to the press, Gallup found that confidence in the Supreme Court had reached a “historic low.” Akin to the cliché of a bully pinning a victim down and making the child slap himself while taunting “stop hitting yourself,” the latest barrage against the Court should be interpreted as an effort to bully it out of dislike for its decisions, rather than as a principled stand.

 

Recently, some of the justices have been accused of ethical shortcomings for failing to disclose interactions with wealthy friends or acquaintances. These accusations are probably better characterized as bad-faith insinuations, since: (1) similar charges were made more than a decade ago and dismissed by the Judicial Conference of the United States, and (2) a number of “liberal” justices have had similar interactions without drawing complaints from the groups making the current accusations.

 

Importantly, no evidence has been presented to suggest the targeted justices have made decisions at odds with the laws or constitutional provisions they are responsible for applying.

 

In other words, the attacks on the justices’ ethics raise questions about the motivations of those making them, and are backed by no evidence that the Court’s rulings are being corrupted or compromised.

 

The Court’s decisions can be frustrating, and the justices can get things wrong; they are only human. But attacking an individual justice’s ethics or the Court’s legitimacy in an attempt to get certain policy results is an assault on the principle of judicial independence, which is a foundation of American democracy.

 

Of course, the justices, like other public officials, are subject to transparency and disclosure requirements that can be refined from time to time. That is appropriate, and failure to follow relevant rules is worth criticizing. But the truth is that it’s the consistency of the Court’s rulings  — often motivated by the justices’ dedication to applying the original meaning of legal provisions — that seems to be the reason they are being targeted.

 

One of the surveys used to show public distrust of the Court reflects this. It asks how much the respondents trust “the Supreme Court to operate in the best interests of the American people.” That formulation suggests a representative role for the justices akin to that of an elected member of Congress — a role at odds with the Court’s ultimate responsibility to ensure “equal justice under law” and faithfully interpret and safeguard the Constitution and laws passed by the people or their representatives.

 

Although in “most years when the survey has asked about trust, party differences have not been significant,” in 2022, the difference between the trust levels diverged dramatically by partisan identification, with 70 percent of Republicans reporting trust in the Court, compared with 32 percent of Democrats. The partisan gap certainly suggests that declining trust in the Court is being driven by the outcomes of its rulings.

 

This reflects a fundamental misunderstanding of the role of the courts. The justices are meant to apply the law as written by Congress or ratified by the people, not to reflect public opinion, engineer policy outcomes, or carry out the agendas of politicians or activists. Americans ignore or forget this role at their peril — and at the peril of the “structural protections” in the Constitution that ensure our civil liberties are upheld.

 

When critics of the justices have the wrong motivations, such as a desire to advance ideological or partisan goals, the changes they seek will be wrong as well. No matter your ideology or political party, you won’t get good outcomes by destroying the foundations of American freedom. Voters, politicians, and the press would do well to remember this before weighing in on future Supreme Court decisions.