22 Briefing America’s Supreme Court The Economist May 7th 2022
Justice Kagan noted that the applicants had
not shown “exceptional need for immedi
ate relief”. To grant their wish anyway “ren
ders the court’s emergency docket not for
emergencies at all”.
In September a shadowdocket request
to block a law in Texas that banned abor
tions after six weeks of pregnancy met a
different fate. Over dissenting votes from
the three liberal justices and the chief, the
conservative majority allowed the ban to
take effect, all but erasing access to abor
tion for Texas’s 7m women despite the pre
cedent set by Roe. Justice Kagan argued the
move was “unreasoned, inconsistent and
impossible to defend”. Steve Vladeck of the
University of Texas argues that by accept
ing some emergency applications and re
fusing others with little rhyme or reason,
the justices “open themselves up to char
ges that they are engaged in political, rath
er than judicial, behaviour”.
The court’s decision to let the Texan law
stand also raised eyebrows because it was
designed expressly to thwart Roe, and thus
the court’s own authority. The law barred
Texan officials from enforcing the ban on
abortions, thus shielding them from legal
challenges. But it empowered private indi
viduals to sue anyone who helps a woman
get an abortion. Those found guilty of do
ing so are to be fined $10,000, which would
be passed as a bounty to the plaintiff. The
court saw nothing wrong with this mecha
nism, even though it could be used to un
dermine all manner of its rulings.Deal with it
This is not the first time the Supreme Court
has been accused of ideological bias. The
biggest crisis came during the 1930s, when
policy after policy of Franklin Roosevelt’s
New Deal hit a judicial roadblock. In 1937
the exasperated president pledged to “take
action to save the constitution from the
court and the court from itself”. He an
nounced a plan to add six seats to the court
to create a new, more pliable majority. But
he did not go through with it, after one of
the justices changed his mind and upheld a
contested law on minimum wages.
The “switch in time that saved nine”
ended the feud with the president and
Congress and heralded greater openness to
Roosevelt’s economic reforms, which he
cemented with seven appointments to the
court between 1937 and 1943. That, in turn,
paved the way for the most liberal period in
the court’s history, in the 1950s and 1960s,
which prompted Republican complaints of
“judicial activism” and calls for the im
peachment of the chief justice.
Forty years later came another crisis,
when the court voted along partisan lines
to end votecounting in Florida and install
George W. Bush as president. But Al Gore
accepted the result with paeans to the rule
of law and peaceful transitions of power.The court’s standing in opinion polls fell
sharply, but recovered within about a year.
The court’s reputation does not seem so
resilient these days. Three recent studies
by two political scientists, Logan Strother
and Shana Gadarian, suggest that deci
sions people do not like “substantially, sig
nificantly and durably affect [their] assess
ment of the court’s nature and its legitima
cy”. When liberals were asked about con
servative rulings in prominent cases, and
vice versa, they tended to view disagree
able decisions as “political”. The more po
litical the court seemed to them, in turn,
the less legitimate they considered it.
Yet for all the misgivings about the
court on the left, few Democratic politi
cians have any appetite to do anything
about it. President Joe Biden appointed a
commission last year to study reforms to
the court. But its report is gathering dust.
Congress seems uninterested in such ideas
as limiting the court’s jurisdiction or trim
ming justices’ life terms, much less ex
panding the number of seats on the court.
One measure with better prospects is an
ethics bill. Unlike their colleagues in lower
courts, Supreme Court justices are not sub
ject to any formal code of conduct. It had
simply been assumed that the justices’
professionalism was unquestionable. Yet
many Democrats have found reason to
question Justice Thomas for failing to step
back from cases regarding the efforts by Mr
Trump to overturn the results of the elec
tion of 2020, which culminated in a rally
turnedriot that overran the Capitol on Jan
uary 6th 2021. Justice Thomas’s wife, Ginni,
a conservative activist, had not only at
tended the rally but had also implored
Mark Meadows, Mr Trump’s chief of staff,
to keep looking for ways to undo Mr
Trump’s defeat. In February Justice Thom
as was the only member of the court to sup
port Mr Trump’s bid to prevent a commit
tee investigating the events of January 6thfrom obtaining presidential records.
The Supreme Court lacks an army; it re
lies on others to give life to its decisions. So
far, whenever the court’s legitimacy has
been questioned, its authority has held.
Yet the justices would surely like their
judgments to inspire more than acquies
cence. And it does not seem implausible
that grudging acceptance might at some
point devolve into defiance.
What, for instance, if a liberal state such
as California or Massachusetts followed
Texas’s example and enacted a law intend
ed to get around the Supreme Court’s per
missive view of gun rights? If the conserva
tive justices were inconsistent and voided
such a law, an outraged Democratic gover
nor might ignore them, spurring a consti
tutional crisis. Laurence Tribe of Harvard
Law School, for one, believes the prospect
of government officials “thumbing their
noses at the court’s formal judgments” is
not “an altogether farfetched scenario”.
An even more worrisome possibility is
another contested presidential election. A
nearmajority of the court has shown in
terest in the idea that state legislators are
the ultimate arbiters of election results in
their states. In 2020 Mr Trump urged offi
cials in states that had voted for Mr Biden
but had legislatures controlled by Republi
cans to find fault with the count in some
way. Although none did so, and the courts
knocked back the many flimsy lawsuits
filed on Mr Trump’s behalf, four justices
have given the impression that they would
not necessarily overrule a legislature that
took it on itself to decide an election.
Justice Robert Jackson saw the court’s
powers as bound up in the public’s percep
tion of its legitimacy. “We are not final be
cause we are infallible,” he said; “we are in
fallible only because we are final.” If politi
cians and voters beginto reject the Su
preme Court’s authorityasthefinal arbiter
of the law, chaos beckons.n