SCOTUS judges are in rare territory: defending their own legitimacy

Of the three branches of the US federal government, the Supreme Court has traditionally received the greatest respect. And while all three branches have lost a measure of trust among the American public the last few yearsit is the Supreme Court that has seen the steepest decline.

Corresponding Gallup poll25% of American adults say they have “a great deal” or “a fair amount” of trust in SCOTUS in 2022, down from 36% a year ago and five percentage points down from the previous record low of 2014. Many court observers quote a recent spate of controversial decisions that have contributed to the decline.

Now Supreme Court justices, historically not known for publicly commenting on such matters, have responded to questions about their institution’s legitimacy.

Judge Elena Kagan, who is in the minority on many of the Supreme Court’s recent controversial decisions, warned that such decisions are politically motivated and risk damaging the court’s standing with the American public. “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as an attempt to impose personal preferences on a society regardless of the law, then there is a problem – and there should be a problem be”, Kagan said during an event at Northwestern University School of Law.

External SCOTUS experts agree. “The legitimacy of the court depends on whether the public thinks the court makes law, not politics.” said Sherif Girgis, a professor at Notre Dame Law School who was a legal trainee for Conservative Justice Samuel Alito.

The court is also facing internal unrest after a draft of its landmark Opinion Roe v. Wade fell was leaked May to the public. Judge Neil Gorsuch told a judiciary conference last week that it was “hugely important” that the person who leaked the draft opinion be identified The Wall Street Journal. Chief Justice John Roberts ordered an investigation into the leak shortly after the draft was released. The court did not provide any information on the status of the investigation.

Roberts himself recently commented on the debate engulfing the court, telling a judiciary conference in Colorado: “Obviously, people are free to say whatever they want and they’re certainly free to criticize the Supreme Court.” And if they want to say that legitimacy is in question, they are free to do so. But I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.”

A partisan court is not an entirely new phenomenon, corresponding Historian Rachel Shelden. By the 19th century, Americans understood that the Court was deeply partisan, and Presidents made their SCOTUS picks based on ideology and party affiliation, not legal ability, Shelden wrote two years ago. The biggest difference between the court then and now, according to Shelden, is the power it wields. “Perhaps in our era of intense polarization, Americans will again accept a more political court — and begin demanding that Congress regain some of the constitutional authority it gave to the judiciary.”