OpinionThe Supreme Court’s crisis of legitimacy

The Supreme Court is facing a dangerous moment. Even before it took the unpopular step of overturning the nearly half-century-old right to abortion, its approval rating had fallen to a historic low — with the public as split along partisan lines as the court itself. If the court confronts a crisis of legitimacy, it’s one largely of its own making.

The current justices

From left to right: Elena Kagan, Brett M. Kavanaugh, Clarence Thomas (with his wife Ginni Thomas behind him), Chief Justice John G. Roberts Jr., Neil M. Gorsuch, Amy Coney Barrett, Samuel A. Alito Jr., Sonia Sotomayor and Stephen G. Breyer.

As recently as 28 years ago, Supreme Court nominees tended to be confirmed by broad bipartisan support in the Senate. Today, in a closely divided Senate, confirmation hearings can degenerate into character assassination that have little to do with the nominee’s qualifications and everything to do with ensuring that the final vote is as partisan — and narrow — as possible.

Just this term, in addition to eliminating constitutional protection for abortion, the conservative majority lowered the wall of separation between church and state, dramatically expanded the scope of gun rights, and hobbled the ability of regulators to deal with climate change and other challenges.

Sen. Mitch McConnell abandoned all pretense of fairness to achieve a longtime goal: conservative control of the Supreme Court. As majority leader, he refused to hold confirmation hearings for President Barack Obama’s nominee Merrick Garland in 2016, on the grounds that a presidential election was eight months away. Four years later, McConnell rushed through the confirmation of President Donald Trump’s nominee, Barrett, just days before the 2020 election.

As the vote to overturn Roe v. Wade showed, Chief Justice John G. Roberts Jr. struggles to control the Supreme Court’s invigorated conservative majority. Roberts, mindful of maintaining the court’s legitimacy as an institution, has sometimes been willing to side with the liberal minority to maintain the court’s appearance of impartiality. But with Barrett’s confirmation, Roberts has five justices to his right impatient to pursue a more aggressive conservative agenda. They no longer need his vote to prevail.

Only one justice voted in support of Trump’s request to block the House Jan. 6 committee subpoena for White House records: Clarence Thomas. Thomas’s wife, Ginni, not only attended the rally preceding the Capitol attack but also lobbied White House officials and state legislators to take steps to overturn the election. According to the practice of the court, it is up to justices to decide for themselves what constitutes a conflict of interest and what merits — or does not merit — recusal from a case.

When lower courts blocked many of Trump’s controversial orders, his Justice Department often turned to the Supreme Court for help. In turn, the court has used its emergency-power mechanism more than ever in part to speed conservative aims. Usually, the court decides cases following full briefing and oral argument from both parties. Using the court’s shadow docket,” justices can issue unsigned orders without briefing, argument or written explanation.

The Supreme Court is increasingly seen as just another partisan wing of the government. While speaking at the University of Louisville, Justice Amy Coney Barrett said that the justices are not “a bunch of partisan hacks.” But the mere fact that she felt compelled to deny it was a sign of how widespread the sentiment has become. The court’s opinions of the past 25 years — and especially of the past few years — broadly suggest the court is a team sport and conservatives have the upper hand — and will likely keep it for a decade or more.

The draft opinion striking down Roe v. Wade written by Justice Samuel A. Alito Jr. that leaked in May represented a huge blow to the integrity of a court that depends on the confidentiality of internal deliberations. Now, the draft is official, overturning almost 50 years of constitutionally guaranteed abortion access.

After the leak of the draft opinion, abortion rights demonstraters have taken to picketing outside justices’ homes. One well-armed man was arrested in early June near Justice Brett M. Kavanaugh’s suburban Maryland home. Concerned about the justices’ safety, the House and Senate passed a bill in mid-June to extend additional security to justices and their families.

The court is poised to achieve longtime conservative objectives — but at a grave cost to its institutional standing.

About this story

Text by Claire Hao. Design and development by Yan Wu. Design editing by Chris Rukan.