Sharon Basch is a rising 2L at the University of Pittsburgh School of Law.
The most recent spate of United States Supreme Court (SCOTUS) decisions handed down late last week have left American citizens more divided than ever. Within the last few years, the US Supreme Court has seen a large volume of what are and will be considered landmark cases – cases that have a lasting and significant effect on law, often concerning individual rights and liberties. Last summer, Dobbs v. Jackson overturned decades of precedent to declare that the right to abortion cannot be found in the Constitution, turning the question of abortion’s legality over to the states.
Over the course of the last month, culminating last week, similarly important decisions have been released regarding election law (Allen v. Milligan and Moore v. Harper), immigration (US v. Texas), Affirmative Action (Students for Fair Admissions v. UNC, Students for Fair Admissions v. Harvard), religious and LGBTQ+ rights (303 Creative LLC v. Elenis), and student loan relief (Biden v. Nebraska, Department of Education v. Brown).
While largely believed to be an apolitical institution of the tripartite United States government, the Supreme Court has always been influenced by personal politics and the “flavor of the day.” Despite this, the average US citizen has generally seen the Court as an independent and reliable arbiter. But the most recent Gallup polls, taken following the Dobbs decision in 2022, indicate that average Americans have the lowest trust in the Supreme Court since Gallup began polling nearly 50 years ago. The trend is alarming. According to the same source, Joe Biden’s current approval rating is 43%, certainly higher than Donald Trump’s abysmal approval rating of only 34% at the end of his term; these low numbers are more indication of the serious division permeating the American political climate.
The Supreme Court of the United States is certainly not new to scandal. One of the first Supreme Court Justices (and the only Justice to be essentially fired) was Justice John Rutledge, whom the Senate removed from the Court following a rant claiming then President George Washington should have been killed rather than sign a treaty with England. When Justice Clark McReynolds died in 1946, not a single living Justice or former Justice attended the funeral – he was hated as a bigot and virulent antisemite who left the room when the esteemed Justice Louis Brandeis spoke.
The current Court, however, has had numerous scandals swirling around it. Justice Brett Kavanaugh had to overcome serious and still lingering sexual assault allegations when he was appointed. Chief Justice John Roberts’ wife works as a legal recruiter, placing lawyers at firms with business before the Supreme Court. Justice Neil Gorsuch sold a massive property shortly following his appointment – he disclosed the sale, but did not disclose that he sold it to a CEO of a top firm that often argues before the court. Justice Samuel Alito has been accused of leaking the opinion in Burwell v. Hobby Lobby, a case that ultimately allowed for-profit companies with religious owners to deny birth control in their employee healthcare plans. Justice Alito also wrote the leaked Dobbs opinion. Justice Amy Coney Barrett has close ties to a right-wing Christian legal group that worked tirelessly to overturn Roe v. Wade.
Perhaps most egregiously, Justice Clarence Thomas has numerous ethics scandals attached to his name. Before taking his seat on the Court in 1991, Thomas fought off sexual assault accusations by Anita Hill, a lawyer in his employ, during his Senate confirmation hearing. He’s recently been under fire again following the discovery of his ties to Harlan Crow, a GOP mega-donor who took him on luxury vacations. Crow also bought three properties belonging to Thomas worth over $100,000 that Thomas never disclosed. Thomas also did not recuse himself from cases regarding the legality or validity of the 2020 election, despite the fact that his wife earned millions of dollars from conservative groups that sought to overturn that vote.
If the Supreme Court has always had scandals, however, why then does it matter today? Other than the fact that any “scandal” to rock the Court’s legitimacy is a major issue for American democracy, having justices embroiled in scandal after scandal does more than a little rocking – indeed, it appears to be shaking the very foundation of the Judicial branch of government.
It seems ever more important that massive reforms be made to SCOTUS. The Court is not currently bound to an ethics code of conduct. While there is a Federal Code of Conduct for judges, it does not apply to the Supreme Court. The US Constitution says that Justices may serve as long as they exhibit “good behavior” and can face impeachment for “treason, bribery, or other high crimes and misdemeanors.” And while once upon a time, Justices would retire and step down when they felt it was time to do so, more and more, Justices sit on the court until they are physically and mentally incapacitated by illness or old age. There are certainly plenty of adjustments that can be made.
It’s not just the Supreme Court either. Gallup polling in 2020 revealed all-time lows since the 1970s in Americans’ trust of most major institutions, including the Presidency, Congress, the police, the military, news institutions, and more. This major distrust exists on both sides of the political divide, which seems increasingly difficult to mend. Indeed it appears that massive inflation, lasting economic effects of the COVID-19 virus, the Russia-Ukraine war, election conspiracies, and importantly, recent Supreme Court decisions have only sown more distrust and division.
But despite all the doom and gloom, the latest SCOTUS decisions are not the end of the story. In the context of affirmative action cases, education systems and schools have ways of skirting the decision to end race-based preference. Injecting money into underfunded schools, focusing on personal essays for entrance to universities, and pushing state legislation may help reduce the impact of affirmative action’s end. Student loan relief packages can also come through state legislation, including forcing loaners to massively reduce their interest rates. None of this, however, erases a feeling of betrayal – for many, these decisions feel like slippery slopes, taking us backward in time, erasing decades of precedents and undoing much of the progress made for civil rights in America in the last 70 years.
Today’s Fourth of July is being celebrated, or not, across America. Some people are waving flags and watching the fireworks, proud of the America they think it is. Many others are staying inside, wondering how much more the Supreme Court may do to destroy their faith in the system.
