Emma Relyea - Teen Aspect - July 30th, 2022
Amidst debates about the overturning of Roe v Wade, further projections for the open carry of firearms, and enhancements of qualified immunity for the police, the Supreme Court of the United States has been at the forefront of political conversations. It appears as if nine Justices, all unelected officials, get to decide the fate of women’s reproductive rights, the Second Amendment, and arrested individuals.
Whether or not the Supreme Court has been radicalized is up for debate. Whether or not the Supreme Court ought to represent public opinion is up for debate. Whether or not the Supreme Court should be expanded is up for debate.
What’s not up for debate is the fact that Supreme Court approval ratings are at an all time low. Never before have we seen such distrust in the Supreme Court to the extent that American citizens are calling for the delegitimization of its decisions.1
In 2021, the Supreme Court had a 36% approval rate, one that was considered to be low at the time.2 After the Dobbs vs. Jackson Women’s Health opinion was leaked and the loss of Roe vs. Wade’s protections were inevitable, the Supreme Court’s approval rate fell to a historic 25%.2
The Supreme Court is designed in such a way that allows them to base their decisions on what they consider to be “right” rather than what would get them elected again.3 Although there will always be adversaries to Supreme Court decisions, 85% of Americans disagreeing4 with a particular decision seems drastic.
So, how did we get here? Supreme Court Justices are appointed by the incumbent President, as intended in the Constitution. However, President Donald Trump appointed three Supreme Court Justices in his one term as President (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), the most appointments since President Ronald Reagan’s four in his two terms as president.5 This mass amount of turnover caused a significant shift in the court.
Prior to Trump-era Supreme Court appointments, the bench had a 5-4 conservative-liberal split.6 Post Trump-era Supreme Court appointments, the bench shifted to a 6-3 conservative-liberal split. Although this doesn’t seem to be extreme, the 5-4 split often became 4-5 in favor of the liberal opinion when Chief Justice John Roberts deviated from his usual conservative position.7 Now, 6-3 would only become 5-4, allowing the court to almost always fall into the conservative majority for controversial cases; the controversial cases are typically the most important decisions.
The fact that Supreme Court Justices are not elected individuals poses the question of how to overcome such record-low approval rates. Unlike Congress or the President, the people cannot elect a new Justice to represent their values. As a result, impeachment and expanding the court come into the picture as two viable solutions to a 25% approval rate.
When it was brought to light that Justice Brett Kavanaugh and Justice Clarence Thomas stated in their Senate Confirmation Hearings that they would not overturn Roe vs. Wade, some in favor of Roe accused the two of lying under oath (an impeachable offense).8 Though, because impeachment of a Supreme Court Justice has never been a successful removal tactic9, the solution becomes less promising.
This is not the first time expanding the court has come to the forefront in the modern age, yet it appears to be increasingly favored. It’s also not the first time the Supreme Court has been expanded in history with Justices changing in number six times before the current nine was settled on.10 The number of Supreme Court Justices often aligned with the number of Circuit Courts - the Court had seven Justices to align with seven Circuit Courts and briefly ten Justices to align with ten Circuit Courts before being changed to nine to ensure an odd number of Justices.11
Now, there are thirteen Circuit Courts. Adding four Supreme Court Justices to make thirteen would be commonplace in American History.
Yet, it was previously viewed as a radical idea that would fail to come to fruition. That is, until Supreme Court approval rates fell to 25%.
The importance of the Supreme Court’s decisions were highlighted in this past term’s publicity. Watching the Court’s approval rates fall lower than they ever have been before only further demonstrates the polarization of the Court and American politics. Although the Supreme Court appears to fail to take public opinion into consideration (as evident in its approval rates), solutions to this ever growing issue have increased their likelihood - though I wouldn’t call them likely just yet.
1 Bokat-lindell, S. (2022, June 29). Is the Supreme Court facing a legitimacy crisis? The New York Times. Retrieved July 8, 2022, from https://www.nytimes.com/2022/06/29/opinion/supreme-court-legitimacy-crisis.html
2 Jones, J. M. (2022, June 28). Confidence in U.S. Supreme Court sinks to historic low. Gallup.com. Retrieved July 8, 2022, from https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx
3 James F. Smith July 13, 2020. (2020, July 13). U.S. Supreme Court v. American Public Opinion: The Verdict is in. Harvard Kennedy School. Retrieved July 8, 2022, from https://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/us-supreme-court-v-american-public-opinion
4 Molla, R. (2022, June 24). What Americans think about abortion, in 3 charts. Vox. Retrieved July 8, 2022, from https://www.vox.com/policy-and-politics/23167397/abortion-public-opinion-polls-americans
5 Gramlich, J. (2022, January 28). How trump compares with other recent presidents in appointing Federal Judges. Pew Research Center. Retrieved July 8, 2022, from https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/
6 Justices By Court. Oyez. (n.d.). Retrieved July 8, 2022, from https://www.oyez.org/courts
7 Robinson, K. S. (2020, July 9). Yes, Roberts is in the middle. no, he's not a liberal. Bloomberg Law. Retrieved July 8, 2022, from https://news.bloomberglaw.com/us-law-week/yes-roberts-is-in-the-middle-no-hes-not-a-liberal
8 Could Democrats impeach Supreme Court justices for lying in the wake of ... (n.d.). Retrieved July 9, 2022, from https://www.usnews.com/news/politics/articles/2022-06-29/could-democrats-impeach-supreme-court-justices-for-lying-in-the-wake-of-roe
9 Frequently asked questions. Home - Supreme Court of the United States. (n.d.). Retrieved July 8, 2022, from https://www.supremecourt.gov/about/faq_general.aspx
10 The Court as an institution. Home - Supreme Court of the United States. (n.d.). Retrieved July 8, 2022, from https://www.supremecourt.gov/about/institution.aspx
11 Why does the Supreme Court have nine justices? National Constitution Center – constitutioncenter.org. (n.d.). Retrieved July 8, 2022, from https://constitutioncenter.org/blog/why-does-the-supreme-court-have-nine-justices
Photograph: Tornabene, J. (n.d.). Poll: U.S. Supreme Court approval rating drops after leaked abortion draft opinion. https://www.nbc15.com. Retrieved July 8, 2022, from https://www.nbc15.com/2022/05/25/poll-us-supreme-court-approval-rating-drops-after-leaked-abortion-draft-opinion/