In a joint dissent, Supreme Court Justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer asserted that the court’s decision to overturn the constitutional right to abortion will threaten the legitimacy of the court. They wrote, “In overruling Roe and Casey, this Court betrays its guiding principles. With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.”
The “betrayed” guiding principles, as the three justices elaborate on, are “The curtailment of women's rights, and of their status as free and equal citizens.” Sotomayor, Kagan, and Breyer explain the court’s ruling to overturn Roe abandons a balance set by past precedents relating to abortion. “It says that from the very moment of fertilization, a woman has no rights to speak of,” they wrote in their dissent.
Most notably, the justices note the right to abortion was nullified not because of new scientific discoveries or a shift in societal values but rather because of the Supreme Court’s new majority. In other words, the makeup of the Supreme Court is responsible for the overturning of Roe, revealing how the Supreme Court is not immune to the rise in political polarization.
To be in this position – where the court no longer remains impartial – is dangerous. When the Supreme Court’s own justices question the court’s reasoning, it is a warning sign of the Court’s depleting credibility.
Concerns surrounding the Supreme Court’s credibility, however, have been surfacing for years, going back to the court’s intervention in the 2000 Presidential election. Bush had won Florida by such a small margin that a recount was required. After a series of legal battles, the case headed to the Supreme Court. In a highly controversial 5-4 Supreme Court decision, Gore conceded. The conservatives of the Supreme Court sided with Bush, the more conservative candidate, while the liberal justices sided with Gore, the more liberal candidate.
In his dissent, Justice John Paul Stevens said, “Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is pellucidly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.” Justice John Paul Stevens observed the reasoning of both sides was influenced by the justices’ political beliefs.
Since the 2000 Presidential election, the delegitimization of the Supreme Court has escalated dramatically. Critics of the Supreme Court have pointed out that the rulings of the Supreme Court no longer reflect the majority opinion of the public.
For instance, critics note the discrepancies between the public’s opinion on abortion compared to the court’s rulings. An NPR-PBS NewsHour-Marist poll found nearly half of women surveyed strongly oppose the court’s overturning of Roe v. Wade, as do three-quarters of Democrats. On the other hand, more than half of Republicans strongly support the court’s decision.
The most noteworthy statistic, however, is more than half of Americans view the decision as being primarily based on politics rather than the law. The majority of Republicans believe the court’s decision was mostly based on the law, while one-fifth of Republicans believe the decision to be largely political.
Another decision made by the Supreme Court is telling of how the court, at times, goes against public opinion. In June of 2022, The Supreme Court ruled Americans have the right to arm themselves in public, nullifying a New York law that placed limits on carrying guns in public settings. According to a poll by the Siena College Research Institute, 79% of New Yorkers opposed the Supreme Court’s decision to strike down the law.
Explaining his support of the decision, Justice Clarence Thomas argued the Constitution protects one’s right to keep and bear arms for self-defense, noting only gun regulations that are “consistent with this nation’s historical tradition of firearm regulation” should remain standing.
However, as critics point out, history and historical texts are not meant to be used by the Court contingently. Each justice, when appointed to the Supreme Court, takes an oath to “impartially discharge and perform all the duties incumbent upon” as “under the Constitution and laws of the United States.” In other words, justices must remain committed and loyal to the law, rather than their own political ideologies.
As Adam Serwer argues in The Atlantic, “This is the purpose of the right-wing justices’ skewed historical analysis: to present discrepancies in their choice of which rights to uphold as inherent to the Constitution rather than as the product of their own undead constitutionalism.”
Shortly after the Supreme Court’s found New York’s gun law to violate one’s right to carry guns outside their home, Neal Katyal, the former Obama administration acting solicitor general, tweeted, “Gonna be very weird if Supreme Court ends a constitutional right to obtain an abortion next week, saying it should be left to the States to decide, right after it just imposed a constitutional right to concealed carry of firearms, saying it cannot be left to the States to decide.”
The court’s legitimacy crisis is not only apparent through their contradictory rulings and reasoning. The confirmation process has become increasingly politicized in recent years.
Political scientists Miles Armaly and Elizabeth Lane date the now ideological confirmation process back to 2016. After Justice Antonin Scalia’s death in 2016, President Obama, a Democrat, nominated Merrick Garland to the empty seat in the court. However, Republican Senate majority leader Mitch McConnel blocked President Obama’s appointment of Garland and refused to act on the nomination until after the presidential election. McConnell argued no justice should be appointed in an election year, but his rationale was clearly political. Garland, a moderate liberal, would have shifted the Court from a 5-4 conservative majority to a 5-4 liberal majority. Once former Republic President Donald Trump won, Neil Gorsuch was appointed to fill Scalia’s seat, preserving the court’s 5-4 conservative majority.
Following Gorsuch’s appointment, Brett Kavanaugh was nominated and confirmed when an explosive battle over Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her took place.
Most recently, when Justice Ruth Bader Ginsburg died in September of 2020, Senate Republicans rushed to the empty seat just weeks before the presidential election, despite McConnell having refused to do so with Garland’s nomination. Amy Coney Barret was appointed to fill the late Justice Ginsburg’s seat, leaving the court with a 6-3 conservative majority.
In September 2021, the Supreme Court’s approval rating had sunk to 40%, the lowest number recorded in 20 years of Gallup polling. Although most Democrats lost faith in the Supreme Court, according to polls, it appeared a handful of Republicans felt similarly. Since then, the public’s approval rating has fallen even further.
“If the new norm of contentious, politicized hearings continues, the Court’s legitimacy may increasingly be threatened,” they wrote. “This is bad news for the Court, which relies on the public’s support for the enactment and enforcement of their decisions.”
“Politicized hearings” have indeed become “bad news” for the Supreme Court. Unsurprisingly, the public’s confidence in the Supreme Court recently sunk to a historic low. The Gallup poll recently found 25% of U.S. adults say they have “a great deal” or “quite a lot” of confidence in the Supreme Court, down from 36% a year ago.
Americans are beginning to recognize the Court is facing a legitimacy crisis. It is nothing short of a tragedy. Regardless, the Supreme Court will always remain a necessary function in the United States judicial system. Therefore, it is imperative the court reclaim its legitimacy. The public’s faith in America’s democratic institutions hangs in the balance.