Monday, June 27, 2022
June 27, 2022

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Estrich: Supreme Court respect tanks

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In the polls at least, the Supreme Court is no longer the respected institution that it once was.

Consider these numbers from the Marquette University Law School poll. In September 2020, the week before Justice Ruth Bader Ginsburg died, 66 percent of all Americans approved of the court. In the latest poll, taken after the leak of the draft opinion overturning Roe v. Wade, the Supreme Court’s approval rating dropped 22 points, to a record low of 44 percent.

Ratings dropped most among Democrats, from 49 percent in March to 26 percent in May. According to the poll’s director, “political polarization in views of the court has just dramatically widened,” with a 42-point gap in approval between Republicans and Democrats.

It is, frankly, hard not to feel betrayed. The traditions that limit the power of judges to make law whole cloth include, first and fundamentally, respect for precedent.

In their confirmation hearings, President Donald Trump’s three appointees — especially Neil Gorsuch and Brett Kavanaugh — mouthed the magic words about respect for precedent that clearly led some Democrats to give them the benefit of the doubt. Maybe at least one of them would respect precedent. Not so, apparently.

That the court appears so nakedly partisan and that it is viewed that way is bad for democracy and the rule of law. The court exercises enormous power in our society without the checks and balances that govern other branches. True, statutes can be amended — and in theory, the Constitution can, too, but the difficulty of doing so only underscores the power that the court has in interpreting words written hundreds of years ago, when, for instance, women had no rights at all.

The court’s decisions are final. They carry the force of law. They must be obeyed and they are, and have been, sometimes with the help of the National Guard (in the school desegregation cases) and the local police (protecting a woman’s right to go to an abortion clinic), but mostly simply because they are “the law of the land.”

It is the great miracle of the rule of law that with few exceptions, no force is needed to enforce the law. The court’s power depends on that.

That is what is at stake when the court becomes just a political institution in a politically polarized country. One side or the other loses respect, or they both do, and it isn’t just respect for the men and women who are sitting there. We risk respect for the institution as a whole.

I remember my old boss, the late Justice John Paul Stevens, a Republican appointee, telling me how dearly the court paid in terms of its credibility for Bush v. Gore. For much of his tenure, Chief Justice John Roberts has attempted to rebuild that credibility, keeping the court on a path that, while conservative, remained within the realm of respect for more moderate and liberal voters. No more. He has lost control, and Democrats have lost confidence.

There are consequences. More people approve of Roe v. Wade than approve of the court. There will be talk of expanding the court. There will be talk of blackballing each side’s nominees. The confirmation process will get uglier, not better. If Democrats lose the Senate, any confirmations could grind to a halt. The disease of disrespect spreads to the lower federal courts as well.

Of course judges make law. It’s the first thing you learn in law school, when you discover that the game is to see and be able to argue both sides, to spot the issues and slice the doctrine. But there are constraints, like “stare decisis,” the Latin phrase for “respect for precedent.” When the court finds new law, it inevitably faces challenges. When it does so by jettisoning a precedent that took decades to find its way into broad acceptance, it risks broad rejection.

Only one thing is clear. The numbers are likely to drop even further when the decision is released and its consequences become daily news fodder. And whichever side of the partisan divide you are on, it is never good news when respect for the rule of law and the institution that is its ultimate repository just plain tanks.

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