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Jamelle Bouie
By Jamelle Bouie
Opinion Columnist
If the chief currency of the Supreme Court is its legitimacy as an institution, then you can say with confidence that its account is as close to empty as it has been for a very long time.
Since the court’s decision in Dobbs v. Jackson Women’s Health Organization nearly two years ago, its general approval with the public has taken a plunge. As recently as the last presidential election year, according to the Pew Research Center, 70 percent of Americans said they had a favorable view of the court. In the wake of Dobbs, that number dipped to 44 percent. Twenty-four percent of Democrats, according to Pew, said they approved of the Supreme Court.
In the latest 538 average, just over 52 percent of Americans disapproved of the Supreme Court, and around 40 percent approved.
Does the court know about its precipitous decline with much of the public? It’s hard to say. It’s easier to answer a related question: Does it care? If the recent actions of the conservative majority are any indication, the answer is no.
Over the past month, members of that majority have effectively rewritten the 14th Amendment to functionally shield Donald Trump from the constitutional consequences of his actions leading up to and on Jan. 6. They have taken up the former president’s tendentious argument that he is immune to criminal prosecution for all actions taken while in office — postponing a trial and potentially denying the public the right to know, before we go to the polls in November, whether he is a criminal in the eyes of the law.
Most recently, the court allowed the State of Texas, governed by a cadre of some of the most reactionary conservatives in the country, to carry out its own immigration policy in contravention of both federal officials and the general precedent that it’s the national government that handles the national border, not the states.
It is enough to make teachers and practitioners of constitutional law wonder, as my colleague Jesse Wegman noted last month, whether there’s any reason to play the table as though it were still on the level — to continue to treat the court as if it were anything other than a partisan political institution.
Here I want to raise an additional point. It’s not just the recent actions of the Supreme Court — including the corrupt conduct of some of its members — that jeopardize its legitimacy and political standing but also the circumstances under which this particular court majority came into being.
There is no way to look past the fact that five of the six members of the conservative majority on the Roberts court were nominated by presidents who entered office without the winds of a popular majority. John Roberts and Samuel Alito, the author of Dobbs, were placed on the court by George W. Bush, who entered office short of a popular vote win and on the strength of a contested Electoral College victory. The other three — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by Trump, who lost the national popular vote by more than two million ballots in 2016.
The three Trump justices bring additional baggage. Each one was nominated and confirmed in a show of partisan power politics. Gorsuch was the direct beneficiary of Senator Mitch McConnell’s blockade of the seat held by Justice Antonin Scalia, who died early in 2016. Republicans, led by McConnell, then the Senate majority leader, refused to give President Barack Obama’s nominee, Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, a hearing in the Senate Judiciary Committee. It was the first time the Senate had simply ignored a president’s nominee for the Supreme Court.
Kavanaugh was confirmed by a narrow vote of 50 to 48 (with one abstention and one absence) in the face of a credible accusation of sexual assault. Barrett was confirmed in flagrant violation of McConnell’s own rule for Supreme Court nominations. To block Garland, McConnell said that it was too close to an election to move forward; to confirm Barrett, McConnell said that it was too close to an election to wait.
There is no question that the Supreme Court’s ruling in Dobbs was the catalyst for its poor standing with the public. But the Dobbs majority owes itself to a garish Republican partisanship that almost certainly worked to weaken the political ground on which it stood in relation to the American people.
At the risk of sounding a little dramatic, you can draw a useful comparison between the Supreme Court’s current political position and the one it held on the eve of the 1860 presidential election.
It was not just the ruling itself that drove the ferocious opposition to the Supreme Court’s decision in Dred Scott v. Sandford, which overturned the Missouri Compromise and wrote Black Americans out of the national community; it was the political entanglement of the Taney court with the slaveholding interests of the antebellum Democratic Party.
Six of the seven justices in the majority were Democratic appointments. The one who wasn’t, Samuel Nelson, was nominated by John Tyler, who was a Democrat before running on the Whig ticket with William Henry Harrison. Five of the justices were appointed by slave owners. At the time of the ruling, four of the justices were slave owners. And the chief justice, Roger Taney, was a strong Democratic partisan who was in close communication with James Buchanan, the incoming Democratic president, in the weeks before he issued the court’s ruling in 1857. Buchanan, in fact, had written to some of the justices urging them to issue a broad and comprehensive ruling that would settle the legal status of all Black Americans.
The Supreme Court, critics of the ruling said, was not trying to faithfully interpret the Constitution as much as it was acting on behalf of the so-called Slave Power, an alleged conspiracy of interests determined to take slavery national. The court, wrote a committee of the New York State Assembly in its report on the Dred Scott decision, was determined to “bring slavery within our borders, against our will, with all its unhallowed, demoralizing and blighted influences.”
The Supreme Court did not have the political legitimacy to issue a ruling as broad and potentially far-reaching as Dred Scott, and the result was to mobilize a large segment of the public against the court. Abraham Lincoln spoke for many in his first inaugural address when he took aim at the pretense of the Taney court to decide for the nation: “The candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers.”
As much as ours is a dire moment for the future of the American republic, we can at least rest assured that we aren’t living through 1857 or 1860 or 1861. Santayana notwithstanding, history does not actually repeat itself. But this Supreme Court — the Roberts court — is playing its own version of the dangerous game that brought the Taney court to ruin. It is acting as if the public must obey its dictates. It is acting as if its legitimacy is incidental to its power. It is acting as if cannot be touched or brought to heel.
The Supreme Court is making a bet, in other words, that it is truly unaccountable.
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Jamelle Bouie became a New York Times Opinion columnist in 2019. Before that he was the chief political correspondent for Slate magazine. He is based in Charlottesville, Va., and Washington. @jbouie
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