Justice Amy Coney Barrett, speaking not at Notre Dame, where she taught law for 15 years before becoming a federal appeals court judge, but at the University of Louisville, told her audience last month that “my goal today is to convince you that the court is not comprised of a bunch of partisan hacks.” Media coverage of the court “makes the decision seem results-oriented” but that is not the case, she said. “Judicial philosophies are not the same as political parties.” Justice Barrett chose a distinctly discordant venue to make her case that the Court is nonpartisan. Her speech was part of the celebration of the 30th anniversary of the university’s McConnell Center, named for the Kentucky Republican whose engineering of her confirmation to the court on the eve of last November’s presidential election, without a single Democratic vote, set a new standard for Supreme Court-related partisanship.
The Supreme Court got off easy in the aftermath of Bush v. Gore. Opinion polling during the ensuing months revealed, to the surprise of the decision’s many critics, that the court had not suffered much in the public’s estimation. One reason may have been that during the period surrounding the decision, the court did not appear to the public to be as polarized along partisan lines. Two of the liberal justices, John Paul Stevens and David Souter, had been appointed by Republican presidents. Two other Republican-appointed justices, Sandra Day O’Connor and Anthony Kennedy, departed from conservative orthodoxy with some regularity.
Justice Kennedy, in fact, wrote the majority opinion in the first important case the court decided following Bush v. Gore, holding that Congress had violated the First Amendment by restricting lawyers who received money from the federal Legal Services Corporation from bringing lawsuits to challenge existing welfare law. That decision, Legal Services Corporation v. Velazquez, issued in February 2001, was an unexpected liberal victory.
The composition and public perception of the court now is very different. All six of the court’s conservatives are Republican appointees, and the three remaining liberals were all appointed by Democratic presidents. A Gallup Poll conducted shortly after the Sept. 1 order in the Texas abortion case showed that public approval of the court had plunged from 58 percent a year ago to 40 percent today, the lowest in the 21-year history of this particular survey.
A poll conducted during the same period by the Annenberg Public Policy Center of the University of Pennsylvania and released on Monday found that 34 percent of Americans agreed with the statement: “If the Supreme Court started making a lot of rulings that most Americans disagreed with, it might be better to do away with the court altogether.” Two years ago, when Annenberg last asked that question, only 20 percent agreed.
My point is not to suggest that the court should be running a popularity contest, but rather to reflect on the erosion of the traditional reservoir of public regard for the institution has provided. Three polls within the past month show that fewer than a third of Americans want to see the court overturn Roe v. Wade. Yet it appears that only a third of the justices can be counted on to preserve the right to abortion as defined by the court’s current precedents. The culture war that brought us to this point may acquire another tangible manifestation as women unlucky enough to live in red states are forced to travel hundreds of miles from home to exercise what for 50 years was their constitutional right.
I’ve quoted conservative justices defending the court from what they portray as unfair misrepresentation, but some liberal justices also shared their own views in off-the-bench remarks. It was Sonia Sotomayor, speaking in an American Bar Association-sponsored virtual “fireside chat” last week, who came closest to the truth. “There is going to be a lot of disappointment in the law,” she predicted. “A huge amount.”