It is becoming increasingly clear that, inside the Supreme Court, some of the Justices are growing worried about the institution’s public reputation. But what may be most worrisome to them is how that might translate into structural change, imposed on the Court from the outside.
In recent days, three of the Court’s nine Justices have spoken out publicly — first, to defend the tribunal’s need for independence and, second, to blame the threat to that independence on flawed portrayal in the media of the Court as politically-driven.
The three were the longest-serving Justice, Clarence Thomas, the newest, Amy Coney Barrett, and the most politically savvy, Stephen G. Breyer. While it is arguable that each spoke out to express their own concerns, it is more likely that there has been at least some internal coordination, to get out a message of common worry.
Ordinarily, the Court is quite indifferent to the criticism it draws for its work. Guaranteed by the Constitution of life tenure, to assure its independence, and bound by a tradition of keeping its focus only on settling legal disputes fairly, it does not believe it should spend any effort in the political world, justifying what it does. In other words, it generally wants its work speak for itself.
In more recent years, however, the Justices have allowed themselves to get out in public, appearing for television or newspaper interviews and, more frequently, speaking before friendly audiences – often without inviting the press or the general public to listen in. Whether intended or not, those appearances often turn into attempts to justify their work.
Right now, the Justices may have some additional reason for making these public appearances, and especially for new pleas to protect the Court’s independence, because the Court’s very future could be on the line.
Sometime this Fall, perhaps as soon as next month, a 36-member commission appointed by President Biden is scheduled to release a report on the Court’s structure and operations. In this space last April, here is how the commission was described: “The key function assigned to the new body will be to discuss the pros and cons of changes now being discussed in public and academic debate – including perhaps the most controversial idea: expanding the Court’s membership beyond nine Justices.”
Depending upon how bold the commission intends to be in choosing what to report, this could present the strongest prospect for change in the Court’s structure since President Franklin Roosevelt failed in his famous “Court-packing” plan 84 years ago. Back then, the Court itself played a role in heading off that attempt by markedly changing its reaction to the ambitious programs of Roosevelt’s New Deal – what historians talk of as “the switch in time that saved Nine.”
So far, there is absolutely no sign that the current majority of six conservative Justices will moderate their decisions to try to head off criticism of the sort that the Biden commission has been hearing regularly throughout its review.
If any Justice were inclined to try to influence the commission’s report, that would be unseemly, since the Court has no role in that endeavor in a separate branch of the government. But going on the public stump to express worry about the Court’s independence could be an alternative way to get the message across.
Cleverly, perhaps, the three Justices did not mention the potential for expanding the membership of the Court or the specific criticism of their decisions that has led to that proposal. Instead, they chose to argue that they are not (as Justice Barrett put it) “partisan hacks” and do not (as Justice Thomas put it) decide cases based on their “personal preferences.” Justice Breyer said much the same thing, a little more subtly as he gave interviews to promote his new book on the same subject.
In expressing worry over the Court’s public reputation, Barrett and Thomas explicitly put the blame on the media for portraying the Court’s work in political terms. It is true that, too often, news stories will refer to Justices as “Republican appointees” or “Democratic appointees” as shorthand for describing their judicial philosophies. That, of course, is an invitation to readers to think of the Court as partisan-oriented.
But what reporters covering the Court do very well is to describe how conservatism has taken over much of the Court’s work, and how some of the Justices – perhaps especially Justices Thomas, Samuel A. Alito, Jr., and Neil M. Gorsuch — have deployed a muscular urge to pull the Court decidedly toward the Right of the judicial spectrum.
Furthermore, the conservative Justices’ increasing use of quickie, largely unexplained orders to take decisive action – like letting Texas’s nearly total ban on abortion rights go into effect despite its obvious contradiction of five decades of constitutional precedent – does contribute to a public perception of an activist Court, pushing toward desired results without deep and thoughtful consideration.
Also contributing to a negative public perception of the Court is that it has given aid and comfort to Republican-controlled state legislatures in passing new restrictions on voting, including new attempts to frustrate the voters’ actual choices in presidential elections of the future and new laws crafting election district maps that will give the GOP partisan advantages even when it is out-voted at the polls. Conservative Justices also have made it possible for Big Money to flow abundantly in congressional and presidential elections.
It is true that the Court did refuse to go along with former President Trump’s boldest attempt to undo the 2020 election victory of President Biden, but the reality is that some of the Justices had shown sympathy along the way for the basic – and highly questionable — notion that the ultimate constitutional control over presidential election machinery lies with the state legislatures.
Moreover, the venues where the Justices sometimes choose for public appearances do contribute to the public perception that they play favorites among political activists. Justice Barrett’s speech lamenting the Court’s reputation as political was delivered at a Kentucky center established by longtime Senate Republican leader Mitch McConnell, and with him sitting on stage.
And, of course, it was McConnell who blocked President Obama from making a Supreme Court appointment to save the seat for Donald Trump in case he won in 2016. And it was McConnell who rushed to put Barrett on the Court on the eve of the 2020 election to deprive Joe Biden of the opportunity if he were to win the presidency.
In short, some more rigorous self-examination may be in order among the Justices of their own role in adding to the reputation of a Court that may have grown too political for its own good.