Opinion: From the Left: Politicization of the Supreme Court

Lance Simmens

From the Left: Politicization of the Supreme Court

by Lance Simmens 

It seems that in today’s toxic political environment, there is an inability to engage in either rational dialogue or debate on any issue that has not been weaponized by one side or the other or both. This has largely contributed to a stunning and dramatic loss of confidence in both leadership and institutions that are ostensibly designed to preserve the foundational pillars of our representative democracy: the executive, legislative, and judicial branches of government.

The latest casualty of our divisiveness appears to be the Supreme Court. A national survey conducted by Pew Research Center recently reveals that 54 percent of U.S. adults had a favorable view of the court. Not bad, but last year it was 65 percent. More telling, however, is that 84 percent said justices should keep their political opinions out of their judicial decisions while 16 percent felt the court did either a good or excellent of doing so.

Politicalization of the highest court in the land may not be a new phenomenon, but it has certainly attracted immense concern lately with the “leak” of Justice Samuel Alito’s draft opinion that will essentially vitiate nearly a half-century of legalized abortion nationwide. With a 6-3 majority firmly tucked in the arms of modern-day conservatism, that is a conservatism that bears little resemblance to Eisenhower, Reagan, or either Bush for that matter, one must seriously question the direction our nation is headed.

What is particularly troubling is the fact that during sworn testimony in their confirmation hearings, the three Trump Supreme Court appointees effectively lied when questioned about their views with respect to Roe v. Wade, feigning that it was settled law and the concept of stare decisis was recognized while citing their respect for precedent, tricky footwork that belied their true beliefs and brought us to the precipice of casting aside established constitutional rights concerning privacy. So long 14th Amendment, which was the basis in Roe v. Wade to extend the right of privacy to encompass a woman’s right to have an abortion. 

But some argued we should have seen it coming. In 2016 the Republican majority in the Senate essentially stonewalled the nomination of Merrick Garland by refusing to grant so much as a hearing on President Obama’s pick for the court. Yet that same Senate hurriedly rushed through President Trump’s selection of Amy Coney Barrett eight days before the presidential election.

Further muddying the high court waters is the involvement of the wife of Justice Clarence Thomas in both planning and preparation of the aborted coup d’etat at the Capitol on Jan. 6, 2021, while personally lobbying the president’s chief of staff to overturn the results of the 2020 election. Only a person lacking any integrity whatsoever, let alone an ounce of common sense, would not immediately recuse himself from any and all issues dealing with the issues currently under investigation by both Congress and the U.S. Department of Justice.

It should come as no surprise that these highly publicized incidents cast further suspicion and doubt in our institutions and those who occupy leadership roles in them. Is it any wonder that in light of the foregoing transgressions an October 2021 poll conducted by Grinnell College found “62 percent of respondents believed that the Supreme Court’s decisions are driven by politics rather than the U.S. Constitution and the law?”

Our constitution has been characterized as a “living document” which has been amended 27 times and has gone through various interpretations that set precedents for future action. We as a society advance through constant modifications that seek to expand, not contract, unalienable rights that are guaranteed to secure life, liberty, and the pursuit of happiness. Our representative democracy is premised upon the caution of checks and balances to solidify the ideals inherent to freedom. 

No person or institution is above the law. This condition, first and foremost, applies to those who sit in judgment when making, enforcing and interpreting the law. While federal judges have been governed by a “Code of Conduct” since 1973, neither this code nor any other code of ethics is applicable to the Supreme Court.

Simon Lazarus recently published a piece for the Brookings Institution entitled “How to rein in partisan Supreme Court justices” in which he argues for passage of the Supreme Court Ethics Act, introduced in July of last year by Democrats in both houses. He concludes, “the impression of a highly politicized court is the result of decisions that flout bedrock principles of judicial comportment-norms such as meaningful respect for precedent, open and deliberative process, evidence-based, reasoned, and publicly explained decisions, deference to democratically elected or selected officials, and good faith fidelity to what relevant legal provisions say and what they have long been understood to mean.”

It is important and imperative that Supreme Court justices act like jurists, not politicians.