The Supreme Court’s authority, grounded since the dawn of the republic in its prestige and reputation, now faces the storms that have overwhelmed Congress and the Presidency and diminished the institutional popularity of our political branches. A recent Gallup poll revealed that just 40 percent of the American people approve of the performance of the nation’s highest tribunal. The political polarization that has torn apart our grand republic represents a grave threat to the perception of the Court as an apolitical body rendering detached, authoritative decisions that preserve and protect the rule of law and fulfill expectations of it as a mouthpiece for the Constitution.
Several Justices, just prior to the opening of the Court’s new term, have addressed public concerns. Justice Amy Comey Barrett, the newest member of the Court, told a Kentucky audience last month that her job was to persuade the audience the Justices are not a bunch of “partisan hacks.” Justices Stephen Breyer and Clarence Thomas, the greybeards of the Court, declared that the differences among the Justices are attributable to different judicial philosophies, not politics. Justice Samuel Alito, one of six republican appointees serving on the High Bench, stated — defensively — that some critics portray the Court as having been captured by a cabal that resorts to “sneaky methods” of considering cases before it, a characterization, he noted, that represents an “unprecedented” effort to “intimidate” and damage the Court. These public statements in recent weeks dovetail the long-standing effort of Chief Justice John Roberts to protect the Court against charges that its members promote their own political preferences.
Clearly, the Justices are embarked on a mission to protect the Court’s institutional integrity and its mission as an impersonal vessel through which the Court speaks. This mission is not new, of course, for the Justices, across two and one-half centuries, have viewed themselves as the primary defenders of the Court’s reputation. To many scholars, the duty of preserving the Court’s reputation, and thus its prestige, explains why, until recent decades, and with few exceptions, the Justices have moved cautiously, taking incremental steps in its interpretation of the Constitution, rather than resorting to leaps and bounds in reshaping and overturning precedents. Historically, the Court has been reluctant to lead the nation.
Exceptions to this rule of behavior can be found, of course, as in Brown v. Board of Education in 1954, in which the Court overturned a 60 year-old precedent and held that segregation in public schools is unconstitutional. And in Engel v. Vitale (1962), when the Court held that school-led prayer in public schools violates the Establishment Clause separation of church and state. And, perhaps more famously, in Roe v. Wade (1973), in which the Court upheld a woman’s right to abortion.
The Courts’ wariness in taking bold steps reflects unhappy historical moments. For example, its ruling in Dred Scott v. Sandford (1857), that the Constitution did not include American citizenship for African-Americans, backfired, and the Court’s reputation was badly damaged, rendering it vulnerable to political attacks by Congress, for roughly 25 years.
For the Court to lead the nation, and convince the citizenry that it is interpreting the Constitution in a manner free of political motives, it must be able to muster persuasive reasoning to defend its holdings and then rely on millions of supporters, and thousands of low-level governmental officials to embrace and enforce its rulings. The Court, as Alexander Hamilton emphasized in Federalist No. 78, lacks the power to enforce its decisions. As a consequence, disregard of the Court’s rulings undercuts its reputation and thus its power.
A felt need among the Justices to protect and nurture its authority, contributes to a narrative of caution, rather than bold moves. This sense of restraint — judicial self-restraint — encourages the Court to uphold precedent for the purpose of ensuring stability and continuity in the law. Frequent rulings that overturn precedents, especially those that protect the rights of the citizenry, have a jarring impact on the confidence of the public in the status of their constitutional liberties.
It is for these reasons that the Court’s new term, filled with blockbuster cases, will be closely watched. Judicial observers will scrutinize the Court’s rulings in forthcoming cases that, among others, may eliminate a woman’s right to an abortion, expand gun rights beyond precedents, and perhaps chip away at the wall separating church and state.
The current, low public approval rating of the Court threatens the Court’s role as chief interpreter of the Constitution and raises the concern that controversial rulings may not be perceived as legitimate by the American people which, again, would threaten the Court’s stature and thus its power. In these circumstances, the Court could hardly lay claim to any moral authority, despite efforts to characterize it as “the conscience of the nation.” Guardians of the Court’s institutional integrity, the Justices themselves bear the primary responsibility, through their written opinions, of reassuring the citizenry that they are above the political fray.
David Adler, PHD, is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. His scholarly writings have been cited by the US Supreme Court and lower courts by both Democrats and Republicans in the US Congress. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at email@example.com