Supreme Arrogance (Times op-ed)
The Supreme Court is the highest court in the American judicial system. Its decisions shape the lives of every American. The court makes decisions that determine whether we can breathe clean air, drink safe water, make healthcare choices, and exercise our right to vote. In addition, the Constitution gives significant responsibility to the court to uphold democratic values and protect the Constitution itself.
Supreme Court justices are appointed and given lifetime positions. Presidents are limited to two terms and may be voted out of office. Members of Congress can be voted out for numerous reasons. However, judges can only be removed through impeachment, and that has happened rarely in our history. The Supreme Court is in a privileged position of authority, but it is essentially unaccountable to the public.
Many are beginning to question the legitimacy of the court. Gallup public opinion polls show a steady decline in confidence from 40% approval in 2017 to 25% in 2022. This is the lowest approval rating since Gallup started this polling in 1973. Reasons for the decline include recent court rulings and breaches in ethics. Many are beginning to wonder whether the court has become a defender of democracy or a threat to it.
Most justices now on the court call themselves “originalists.” Originalists support the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it nearly 250 years ago. This perspective is often disconnected to the realities of today’s world. For example, recent Supreme Court rulings on guns, abortion, and clean air appear arbitrary, capricious, partisan, and unpopular. Take the landmark Dobbs decision which reversed Roe v. Wade. The court upended 50 years of “settled law” on a woman’s right to an abortion. This sweeping decision has been deeply unpopular. Most Americans (60%) favor the right of a woman to choose in all or most cases according to a June 2022 PEW Research Center poll.
Two court decisions have overturned State gun laws to allow the absolute right of gun ownership with few restrictions. In 2008, the court overturned a hundred and 50 years of precedence in the Heller decision, ruling for the first time that gun ownership for the protection of a home is a constitutional right. In the 2022 Bruen decision, the court rewrote the test lower courts use when weighing the constitutionality of a gun-related law. The court endorsed an originalist approach to interpreting the Second Amendment. It determined that the government must justify its regulations by demonstrating that it is consistent with the nation’s historical tradition of firearm regulations. No longer can the courts consider the increasing number of deaths, the harm to our children, or the overall sense of security needed for an open society. What counts now are the historical precedents in American history, not the public’s welfare.
In a 2022 decision brought by the State of West Virginia, the court restricted the EPA’s ability to regulate clean air. The Supreme Court found the EPA’s Clean Power Plan exceeded EPA’s statutory authority because Congress did not clearly vest EPA with authority over the makeup of the entire power system. This ruling will limit EPA’s ability to regulate air quality at a time when carbon emissions are threatening the viability of our planet.
It is not just the court’s out-of-step decisions. The behavior of some of the justices is also being scrutinized. The Supreme Court is the only federal court without a written code of ethics which prompts the question: Why should the highest court in the land have no written ethical standards – especially since there have been several reported ethical lapses? On June 20, 2023, ProPublica published a story reporting that Supreme Court Justice Samuel Alito in 2008 flew on a private jet to a luxury fishing vacation in Alaska thanks to the hospitality of hedge fund billionaire Paul Singer, whose business was based on hard-hitting litigation. Since that trip, Singer has had litigation before the Supreme Court at least 10 times. Alito neither disclosed the gift of the flight on the private jet nor recused himself from ruling on those cases.
ProPublica, in April 2022, also began a series revealing that Justice Clarence Thomas had accepted lavish gifts from Texas billionaire and Republican megadonor Harlan Crow, as well as private school tuition for a relative and real estate deals. Thomas did not disclose those gifts. Also, since joining the U.S. Supreme Court in 2009, Sonia Sotomayor has made over $3.7 million from sales of her self-authored memoir and children’s books, according to The Associated Press. The success of these titles is due in part to efforts by her taxpayer-funded staff to pressure colleges and libraries into purchasing them in large quantities for audiences at her publicly sponsored speaking events.
These disclosures have prompted many to demand that the court develop standards of ethical conduct. So far there has been no action. This delay has further lowered trust and confidence in the court. Critics are asking: Are these sweeping, unpopular court decisions, upending decades of precedents, based on Constitutional law or are there other considerations at play? Criticism has been so loud that even Congress has threatened to impose ethical standards if the Court refuses to do so.
Democratic societies depend on trust and confidence in their institutions. Right now, the disconnect between the Supreme Court and the public is wide and needs to be addressed. It is incumbent upon the court to begin to restore that trust.
Tom Deloe is a member of Gettysburg Democracy for America’s Healthcare and Government Accountability task forces. He lives in Cumberland Township.