According to a Gallup poll last month, public trust in the Supreme Court has hit an all-time low. Only 25 percent of respondents have “a lot” or “quite a lot” of trust in the court. This is a drop of 11 points compared to last year and twice as much as the drop in public trust in other institutions.
Much of the court’s image problem stems from the perception that it is politicized, whether it’s the refusal of Republicans to allow a vote for Obama’s nominee Merrick Garland in 2016 or the fact that one justice refuses to recuse himself from cases that could to implicate his husband in an attempt to overthrow democracy (public confidence in the court among Democrats stands at just 13 percent).
It is also guided by the court’s recent decision to overturn the 50-year-old precedent in Roe v. Wade. The poll was conducted before that decision, but after Justice Samuel Alito’s draft majority opinion was leaked to the press.
But this court brought much of the crisis of legitimacy upon itself. It abdicated from its most important and profound responsibility – the protection of fundamental constitutional rights. And it has done so in a series of decisions that are patently political, wildly inconsistent, and in some cases wrong on basic facts.
Abortion rights activists march on the White House to denounce the US Supreme Court’s decision to end federal protections for abortion rights.
Yasin Ozturk/Anatolia Agency via Getty
In addition to simply overturning a half-century of precedent guaranteeing abortion rights, during this term the justices also gutted a 10-year-old precedent on the right to competent counsel, a 50-year-old precedent on the Establishment Clause and another 50-year-old precedent allowing people to sue officials of federal law enforcement.
In Shinn v. Ramirez, the court held that federal courts are prohibited from considering newly discovered evidence of an inmate’s innocence, even if the inmate has shown that his attorneys were incompetent in failing to discover that evidence at trial or on appeal. Barry Jones, one of the death row inmates in that case, is probably innocent. The court did not rule that it found Jones’ claims of innocence unpersuasive. Instead, he ruled that even considering the evidence of Jones’ innocence would undermine Arizona’s state of sovereignty.
It should go without saying, but any justice system that willingly ignores evidence of a death row inmate’s innocence is inherently illegitimate.
During oral arguments, several justices — including Chief Justice John Roberts, as well as Justices Clarence Thomas and Brett Cavanaugh — acknowledged that the Arizona decision would effectively overturn that precedent. They voted to do it anyway. Two justices — Roberts and Alito — even reversed their own votes from the precedent-setting case, without explanation.
Justice Thomas’s majority opinion also contained a critical factual error. Thomas argued that Barry Jones’ attorneys conceded that Jones would lose his state appeals if he was not allowed to present the new evidence of his innocence. Even the state admits Jones never made that concession. But Thomas’ error will make it even more difficult for Jones to get the Arizona courts to review his case. However, the court refused to correct the error.
Finally, even as the majority decided that Jones should pay the price for his attorneys’ mistakes, it gave Arizona prosecutors a pass for their own critical error. Prosecutors get leniency. Prisoners must be perfect. And if the court itself errs, well, the prisoner pays for that too.
Unfortunately, these kinds of errors in highly consistent opinions are not uncommon. Perhaps the worst example is a 2002 opinion in which Justice Anthony Kennedy cited a discredited popular science article about recidivism rates among sex offenders. That decision has since been cited by dozens of lower courts across the country to justify a variety of draconian policies, from residency restrictions to indefinite detention. The court had several opportunities to correct the error. Is not.
The Supreme Court as of June 30, 2022
Fred Schilling, United States Supreme Court Collection
The court has also invoked provably erroneous statements of fact in its rulings on no-knock raids, drug dogs, police checkpoints, prosecutorial misconduct, roadside searches, and police brutality. None of these have ever been corrected.
In the school prayer case last term, the majority and the dissent could not even agree on one easily verifiable fact at the heart of the case—whether a football coach’s prayers were held in private and on his own time, or public spectacles that might have been forced on his players. (The record pretty strongly points to the latter.)
The Court has also been inconsistent about how and when it applies legal doctrines, leading to the understandable impression that there is no established rule of law, but only a series of theories from which judges can choose to support their preferred outcome.
One example is the concept of federalism—how much of the government should be run at the federal level versus how much by the states. In Shinn, the majority deferred to the state of Arizona for presumptive innocence, noting the Court’s 30-year assault on federal habeas corpus, or the ability of state prisoners to have their convictions reviewed by a federal court. (The Court did overturn 10 years of precedent, but in this case the precedent—which created a very narrow path to federal court for some prisoners—was the anomaly.) Indeed, the Supreme Court has consistently held that federal judges must defer to state court decisions on constitutional rights—even when state courts err on matters of constitutional law.
Yet the Supreme Court is also happy to intervene in state courts when it wants to uphold convictions, such as in 2015 when it overturned a Maryland appeals court’s decision to overturn a conviction won with questionable forensics.
This term’s case regarding federal police suits also illustrates this court’s tendency to choose whatever legal theory suits its interests. The majority nearly overturned the 1971 case of Bivens v. Six Unknown Agents. In that case, the court wisely held that when federal law enforcement officials violate the Constitution, the victim should be able to sue those officials in court. Conservatives on the courts have never liked this decision, arguing that it is a judicially created remedy for rights violations that was never authorized by Congress.
But the purpose of the Bill of Rights is to specifically list those rights that are so important that they cannot be voted down or legislatively abrogated.
Even here, the court is selective when dealing with political bodies. The doctrines of qualified and absolute immunity protect police and prosecutors, respectively, from lawsuits when they violate someone’s constitutional rights. Like Bivens, these are court-created doctrines out of whole cloth, and with qualified immunity the court has effectively defied the will of Congress.
But these doctrines protect law enforcement while Bivens allows them to be sued. Significantly, the court has expanded the former and has now all but eradicated the latter.
Conservatives and institutionalists, including Justice Thomas himself, seemed horrified by the court’s waning authority and laid the blame squarely on the court’s critics. But there is a parallel between the court’s current crisis of legitimacy and the way it deals with wrongful convictions. The Court has long held that the integrity of the judicial system requires protecting the finality of convictions when there is clear evidence that the system has erred.
But turning a blind eye to wrongful convictions in the name of “finality” gives no real integrity, only the illusion of it. Likewise, defenders of this court blame its plummeting authority not on its increasingly biased rulings, contempt for precedent, and refusal to uphold the Bill of Rights, but on society’s failure to properly honor it.
That takes it right back. Authority does not come from robes, flamboyance, or neoclassical columns. In democracy, you win. And this court did not deserve it.
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