May 21, 2024 - 4:15pm
Donald Trump’s appointment of three Supreme Court justices, followed by the overturning of Roe v. Wade in 2022, has caused sections of the media to ramp up its attacks on the country’s high court.
The latest such effort was a New York Times report that Justice Samuel Alito, one of the most conservative members of the high court, flew an upside down flag outside his home in January 2021, days before Biden’s inauguration. The NYT reported the gesture as a “Stop the Steal” election denial symbol, a fact that’s been disputed. Online search results restricted to 6 January 2021 and earlier yield few mentions of the upside down flag as related to election denialism, and the gesture has many possible interpretations. Alito, for his part, said his wife flew the flag amid a dispute with neighbours, and that he was not involved.
Nonetheless, calls for recusal quickly poured in from Democratic members of Congress including Dick Durbin and Jerry Nadler. “Flying an upside-down American flag — a symbol of the so-called ‘Stop the Steal’ movement — clearly creates the appearance of bias,” Durbin wrote. “Justice Alito should recuse himself immediately from cases related to the 2020 election and the January 6th insurrection, including the question of the former President’s immunity in U.S. v. Donald Trump.”
Shortly after, a new story was published by the Left-wing New Republic magazine reporting that Alito, months into a massive boycott of Bud Light’s parent company over its relationship with a transgender influencer, sold his stock in the company. Its publication inspired a new round of calls for recusal, with some arguing that the justice should also refuse to rule on cases involving transgender issues.
Supreme Court recusals are rare, given the small size of the Court and the impact one absent judge can have on its ability to issue rulings. Ruth Bader Ginsberg, for instance, ruled on cases in which her husband and daughter were involved.
Clarence Thomas, another Supreme Court conservative, was the subject of a separate round of media investigations last year related to his accepting gifts from wealthy friends, including vacations and school tuition for his nephew. ProPublica, which broke those stories, received funding from donors who have also supported activist groups pressuring an investigation of Thomas and pushing for his resignation. Numerous congressional Democrats called for his resignation, and talk show host John Oliver offered to pay him $1 million per year to retire.
Public approval of the Supreme Court fell precipitously from 2020 to 2021, but it’s hovered at around 41% in the years since, including a slight increase in approval in the months after Roe v. Wade was overturned. Even as the Court has a strong conservative majority, its approval among Democrats has been steadily recovering since its 2022 dip following the end of Roe, and stood at 23% last autumn.
Left-wing media outlets have tapped into this Democratic dissatisfaction with frequent articles warning of a crisis of credibility for the high court. “The conservative majority to which [Alito] belongs could destroy the Court, in a sense; the institution will probably survive in some form, but it cannot sustain this reputational damage forever,” New York Magazine warned. As the possibility of a second Trump terms draw nearer, these attacks may intensify as the makeup of the Supreme Court hangs in the balance.
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SubscribeThe right-wing media have never attacked liberal judges on the Supreme Court, of course.
To be fair, ‘conservative’ seems to have become a byword for judges who insist on equal and fair application of the law. In contrast, liberal judges seem all too eager to twist laws to reach social justice outcomes.
I’m by no means saying that conservative judges are without fault, however, just that there is a reason why liberal judges and lawmakers are getting a bad rap these days.
“The right-wing media” – who are these people?
Shibboleths.
With headlines from 2014 like ‘A Summary of Why We Need More Judicial Activism?Or ‘A Cheer for Judicial Activism’Judicial Activism used to be a really great thing for liberals to support.
Yep. When activists started using the courts to legislate issues they couldn’t get the public to support, this was inevitable. They’re simply guilty of excessive short term thinking, only considering the immediate benefits when it works out their way, not considering the possibility that their opponents might use the same power against them in the future. The entire situation where Trump appointed three justices in one term is arguably the result of a rule change in the Senate from 2013, where the Democrats lowered the threshold to confirm judicial appointments to a simple majority 51 votes rather than a sixty vote supermajority in response to some of Barack Obama’s very liberal appointments to lower courts, which do matter because the Supreme Court can’t handle everything and the lower court judges become the pool from which supreme court justices are selected. Not getting ultraliberal judges mattered. The Republicans filibustered them. The Democrats threw a fit and changed the rules. At the time, they excluded Supreme Court appointments from the rule change but the damage was done. If one side changes a longstanding rule, the other side can too. When the Republicans got power back, they changed the rule again to include Supreme Court appointments. What’s good for the goose…
Both sides attack the other side’s judges. Both sides complain of court overreach and court power only when they lose. They’re both correct. The courts shouldn’t have so much power over issues that should be decided by elected representatives who more accurately reflect the will of the people. Court power is one of the greatest tools of technocrats who want to bypass the popular will. For some, that’s not a problem. For me, it very much is.
Should abortion be decided by state representatives or by the Supreme Court?
Neither. We have a legislative branch for a reason.
edit: perhaps you meant that by using “state representatives”. It’s not clear from your post as the states have their own legislative bodies.
By the states through their individual legislative bodies, exactly as it is in the EU. Period.
The problem is that as things stand, the Supreme Court has too much power. The power to unilaterally override basically any action of Congress or the President on constitutional grounds, which we’ve seen can be stretched as far as the human imagination, is basically a dictatorial power. This is not what the founders intended. The power of judicial review, to declare a law or executive order unconstitutional, was established during Jefferson’s first term, so it’s quite old. Jefferson himself was the defendant and believed the court was overstepping its own bounds, but given the youth and instability of the early US, he backed down. For a very long time, this didn’t cause too many issues because the court had a tendency to follow the law as written quite strictly and refrain from taking politically charged cases. There was a tradition for justices and the court to remain ‘above’ the political fray. That time has passed.
One of the big problems in the US is that the courts have increasingly abandoned neutrality and interpreted the laws in increasingly creative ways to push through the social agendas of the Democrats who appointed them. Roe vs. Wade is the most well known and egregious example of the court taking over matters that should have been left to the states and the people to sort out among themselves. Of course, by the law of unintended consequences the lawyers and political class on both sides saw this happening and saw an opportunity to further their political agenda without having to bother with uncooperative voters or tedious elections. Now they’re using the courts to wage political warfare that properly should be in the domain of Congress or dealt with at the state level. Further, because supreme court appointments are lifetime appointments who can serve decades, becomes far more important for the fact that it doesn’t happen often. This was one of the critical issues in the 2016 election, so much so that Trump put out a list of names of potential appointees under his administration. Some believe this issue was critical because Republicans who might have hated Trump for his personality or manner voted for him anyway because of the unique situation which the voters well understood. It was already known that the president would make one appointment since Merrick Garland had been successfully held up by the Republican Senate, and a couple of justices were very old at that point.
As you can see, this is quite a mess, one of the biggest problems the USA faces, though you’ll never hear the liberal media discuss the issue except to complain when they are on the losing side. Unfortunately, it will probably take a major structural change to fix this, and I don’t see how that can happen in the current political climate. All Congress can do is change the number of justices. Term limiting the judges, having them directly elected by the people, or by Congress, or more clearly spelling out the exact boundaries of the court’s authority, would have to be amendments to the Constitution and that’s not gonna happen in today’s America. The courts are basically a second front in the political warfare that America engages in, and probably will be for the foreseeable future.
Always enjoy your serious analysis even if I don’t agree with all of it.
Some food for thought. I actually think the Supreme Court is probably keeping the US from total collapse but I do agree they’re too involved right now. That said, I don’t know how they can avoid questions about the Separation of Powers. Out of all their roles going back to Marbury v Madison, preserving and defining the proper role of the Executive and Legislative branches is their most important function. They have to outline what the co-equal branches are able to do.
Interestingly, while Israel doesn’t have a written Constitution the Left there is making precisely the opposite case. That the Supreme Court has to be able to overrule legislation that it finds unreasonable. The Left claims that “Democracy” is threatened by not allowing the court to overrule the legislative/executive branches.
I know you aren’t treating this as a Left/Right issue but it seems that the goals of any Progressive Party, which are all typically aligned Internationally, is to simply plow through any checks and balances to implement their agenda. It would be helpful if those who claim to stand for Democracy could provide a working definition.
Excellent points. The role of the courts is a problem mainly because of activist judges which the left started. I think term limits would help. Make it so 3 of the nine are replaced every four years. Only a president that won multiple terms could tilt the court one way or another. Still it would require an amendment which is all but impossible in today’s political climate.
Speaking as an Australian, our High Court (the nation’s highest Court) went through an arguably “partisan” phase a good while ago now (in large part over the “States Rights” issue). However, it could not be said to be now, and hasn’t been during the time I have been a lawyer (almost 30 years). We do have compulsory retirement for judges at age 70 though, although that wasn’t always the case.
I enjoyed your analysis and found it illuminating.
We have a similar problem in the UK with our Supreme Court. This now creates legislation, thereby undermining the role of Parliament which has, until the Supreme Court (and ignoring the EU inputs until recently) was created by the Blair Labour government. It regularly challenges and undermines the sovereignty of Parliament and has contributed to inversion of the law whereby the interests of minorities trump those of the majority, in contrast to the orientation of the law in relation to the majority in previous decades and centuries. Unlike Parliament (i.e. elected members) judges are not accountable to the electorate or to any authority other than themselves. Not good for democracy.
I’m not sure what anyone expected when these far right, religious nut cases were appointed to the Supreme Court. Of course they are crooks like Thomas or wild partisans like Alito (and Thomas again of course!).
We’d have a more honest situation in Britain if our SC judges were appointed by elected representatives.
The SC overturning “Roe Vs Wade” was the best thing to happen to the Democrats in years, without it Biden would already be toast.