And so it begins. The start of the term leaves me very anxious about the damage this Supreme Court may do to the country and to itself.
As its decisions on religious freedom, abortion, and affirmative action already show, the current Court seems determined to move the country decidedly to the right. And ethics and the legitimacy of the Court be damned, some Justices don’t seem to care very much either about the appearance or the reality of conflicts of interest and the influence of politics on the Court’s work.
Of course, this is not the first time in its history that the Court has seemed to be deeply out of step with the country or to be playing the role of a vanguard for a political movement. Indeed, for generations, scholars and commentators have tried to articulate the difference between law and politics as they play out in the Court’s decisions.
Today there are deep divisions over whether the Court has become just another outpost of the country’s conservative political movement.
Amanda Hollis-Brusky, professor of politics at Pomona College says, “The Supreme Court has not just been divided along the ideological lines that always existed, but divided along partisan lines, with every justice appointed by a Democrat voting more liberally than every justice appointed by a Republican. That is far from the historical norm….”
There is, she argues, “the sense that law is nothing more than partisan politics. And I think that’s the dangerous place we find ourselves in right now.”
William Baude, who teaches law at the University of Chicago, disagrees with Hollis-Brusky’s assessment. In his view, the current Court has done a very good job of eschewing politics and applying the law.
“The Court,” he argues, “is now much more committed to law at the expense of politics than any time in our memory, and indeed for decades before that.”
And the Justices themselves have weighed in to reassure everyone that Baude’s view is right.
In 2019, Chief Justice John Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Two years ago Justice Amy Coney Barrett used a speech at the McConnell Center at the University of Louisville Law School to argue that “This court is not comprised of a bunch of partisan hacks. Judicial philosophies are not the same as political parties.”
But it is hard to accept such self-serving characterizations when, as UC Berkeley Law Dean Erwin Chemerinsky notes, “The reality is that time and again the court’s Republican majority has handed down decisions strongly favoring Republicans in the political process….”
He argues that “In a series of rulings, with all of the Republican-appointed justices in the majority and the Democratic-appointed justices dissenting, the court has strongly tilted the scales in elections in favor of Republicans.” Of special note here is the fact that the “conservative majority eviscerated the protections of the 1965 Voting Rights Act in a manner that helps Republicans and hurts voters of color and Democrats.”
In these and other cases, Chemerinsky says “the Republican justices changed the law to dramatically favor Republicans in the political process.” He is right to say that “If Supreme Court justices don’t want to be seen as ‘partisan hacks,’ they should not act like them.”
But, as the Court begins its new term, I’m afraid we are in for more partisan hackery.
Just last month we learned of Justice Clarence Thomas’s shockingly cozy relationship with, and work in support of, the Koch network, which National Public Radio calls “one of the largest and most influential political organizations in the country.”
NPR reports that “Thomas has at least twice been brought in to speak at private dinners for large donors to the Koch network. That put him in ‘the extraordinary position’ of having served as ‘a fundraising draw’ for a network that has repeatedly brought cases before the Supreme Court.”
What Thomas is doing is clearly a threat to the tattered legitimacy of the Court on which he serves. A Gallup poll done at the end of September found that the public approval of the Supreme Court remains mired at “historically low levels.” Just 41 percent of the public approves of how the court does its job.
Not surprisingly, as a Washington Post story says, “approval of the court divides sharply along political lines, with only 23 percent of Democrats and 40 percent of independents saying they approve of the court’s performance, compared with 56 percent of Republicans.”
Gallup concludes that “Going forward, concerns about Supreme Court justices’ acceptance of gifts and lavish trips, particularly among two conservative justices, may subdue the public’s approval of and trust in the nation’s highest court.”
Thank you, Justice Thomas, who, like Donald Trump, thinks he can do almost anything and get away with it.
In the upcoming term, the partisan tilt of the Court is likely to be felt in many areas. But three seem particularly consequential to me.
First, the Court will hear a case involving allegations of racial gerrymandering in South Carolina. A Republican-drawn redistricting map moved “over 30,000 African American citizens from their previous district” in a bold racial gerrymander. A lower court found that the South Carolina legislature used race as the main factor in drawing its new destructing map. I am not confident that the Supreme Court will agree.
A second case is likely to further the Court’s aggressive effort to curtail gun regulation. The Court will consider whether a 1994 federal law that prohibits people under domestic violence restraining orders from possessing a firearm violates the Second Amendment. Given its insistence that only gun regulations that are deeply rooted in our history and traditions are constitutional, the 1994 law is unlikely to survive.
The last of the three cases that has me dreading this year’s Supreme Court term is a case, brought by a group of commercial fishing companies backed by the very same Koch network that Justice Thomas favors with his presence. It is asking the Court to overturn the Supreme Court’s 1984 landmark decision in Chevron v. Natural Resources Defense Council, which gave agencies wide-ranging authority to implement regulations to promote public safety and well being. Like many others, I will be surprised if Chevron survives.
A nation with more racial gerrymandering, with more guns, and with severe limits on the power of administrative agencies to regulate in the public interest may make Republican activists happy, but it will not make this a better nation for most Americans.
