September 27, 2021 | Reading Time: 4 minutes

Do the Democrats have the incentive to attack not only the court’s conservatives but the court’s legitimacy? It seems so

Let's hope its polling slump is permanent.


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Last week, Jennifer Rubin wrote about the sinking reputation of the United States Supreme Court. With respect to a new abortion law in Texas, which invalidates Roe v. Wade, the Post columnist said that, “The nub of the problem is not that (or not only that) voters are angry that the court allowed a diabolical and invasive Texas law to go into effect. The problem, rather, is that once the facade of impartiality and nonpartisanship is shattered, it is nearly impossible to get back.”

It’s an important piece. You should read it. But the assertion that “the facade of impartiality and nonpartisanship” is hard to put back together once it’s started coming apart is worth dwelling on. Is it true? Well, I have to repeat myself, to wit: most people most of the time have something better to do than pay attention to politics. 2000’s Bush v. Gore should have shattered “the facade” utterly, but didn’t. Why? For one thing, 9/11. For another, most people have other things to do. 

But if most people most of the time continue to think of the court as an institutional source of liberty, and if most people most of time continue to forget the bad things it does, there’s no hope of reforming it.

Three recent polls show the high court’s approval rating taking a nosedive. “Just 40 percent of Americans approve of the court, according to the latest Gallup poll,” the Associated Press reported. “That’s among the lowest it’s been since Gallup started asking that question more than 20 years ago. Approval was 49 percent in July.” (Such was the occasion for Rubin’s piece and other pieces you saw last week.) But each poll can be pointed to as evidence of the nosedive being temporary. Unlike the United States Congress, which has an abysmal reputation, the court’s numbers never stay low. They go up a little. Then down a little, or a lot, before returning safely to the mean.

Left to their own devices — which is to say, left to find something better to do than pay attention to politics — most people can be trusted to forget whatever bad thing the court does. (Voters are renowned for their short memories.) What’s more, most people tend to agree with Justice Stephen Breyer’s rose-tinted view: that the court is an institutional source of liberty. Combined, apathy and myth create conditions in which the court can weather pretty much anything. 

But what if most Americans were not left to their own devices. What if a major political party had the incentive to never let them forget? What if a major political party grew hostile toward court myths?

Incentive has existed on the margins of the Democratic Party since at least the moment Mitch McConnell robbed Barack Obama of a justice. Those marginal voices have been growing louder, and hence less marginal, since 2015 with every court-related outrage, particularly the GOP’s ramming through of a nominee during an election year, which was the reason given for robbing Barack Obama. (Not to mention expediting Brett Kavanaugh’s confirmation before the FBI could thoroughly vet him; not to mention the appointment of three justices in all by a president who colluded with a hostile foreign power to win.) 

Here’s the tip jar!

The Democratic Party’s centrists, however, have not felt the same pressure, despite all the outrage over more than half a decade. They have continued to see the utility in respecting the court. Unlike liberals and progressives, centrists have not been moved by the court’s approval of the former president’s Muslim ban, by the court’s gutting of the 1965 Voting Rights Act, by the court’s kneecapping of trade unions, by the court’s eviction, in effect, of essential workers from their homes and other rulings of factional Democratic interest. 

But the Supreme Court’s lawless decision to use the “shadow docket” to allow an anti-abortion law in Texas to invalidate half a century of court precedent without a single argument or a single written opinion cuts right through the Democratic Party’s respectable white people. It has radicalized those voters who had hoped against hope during more than a half-decade’s worth of outrage that Roe would not fall. They see it falling now. Fast. It’s open season on the court’s legitimacy.

This would explain the court’s recent polling slump. If I’m correct about these incentives, we might see its numbers shift profoundly — from a familiar pattern of gentle ups and downs to a new pattern of permanent and painful lows. “I do think there’s a sustained campaign to delegitimize the court that has gotten some traction on the left,” a big-wheel attorney who often argues before the court told the AP. But it’s not the left. This is respectable white people we’re talking about.

Let’s hope I’m right. If most people most of the time continue to think of the court as an institutional source of liberty, and if most people most of time continue to forget the bad things it does, there’s no hope of reforming it, whether that means expanding the number of justices, implementing term limits or something called “jurisdiction stripping.” (See the Editorial Board’s Chris Sprigman for more.) There would be, therefore, no hope in turning Roe into statutory law. The court would strike it down. The Democrats must beat them to it. Before they can save the village, however, they have to burn it down


John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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