Opinion |

Concerns persist as Supreme Court returns to work

What do herring fishermen, gun rights advocates and Elon Musk have in common?

Their connection is the U.S. Supreme Court: Each has an interest in a case that will be considered during the 2023-24 term, which began on Monday.

Herring fishermen don’t want to pay for federal monitors on board their vessels to prevent overfishing. Gun rights advocates hope to strike down a 30-year-old federal law barring people accused of domestic violence (or with related restraining orders) from possessing firearms.

Musk, the owner of X (formerly known as Twitter), wants social media content moderation to go away.

As usual, the decisions made in these cases could have profound implications for our daily lives.

Our country is still stinging from some of the court’s recent and more contentious rulings, like Dobbs v. Jackson Women’s Health Organization. The June 2022 decree overturned Roe v. Wade, eliminating American women’s constitutional right to control their own bodies and have an abortion, if they so choose. The majority of Americans support this right, albeit with some restrictions.

Dobbs was followed last year by a series of high-profile rulings addressing such issues as affirmative action, LGBTQ rights and student loans. Polling by Pew Research Center at the end of the term found the share of Americans with a favorable opinion of the court had declined 26 percentage points in 12 years. The survey marked the first time in Pew’s polling (dating to 1987) that the public’s views were significantly more negative than positive: Fewer than half of Americans (44 percent) viewed the court favorably, while 54 percent had an unfavorable view.

As described by the New York Times editorial board last year, “The Supreme Court’s authority within the American political system is both immense and fragile. Somebody has to provide the last word in interpreting the Constitution, and — this is the key — to do so in a way that is seen as fair and legitimate by the people at large.”

“Fair” and “legitimate” are the operative words here. Just recently, someone was lamenting to me that the court is out of touch with public opinion in our country. But the justices’ job is not to satisfy the majority. Still, when their decisions do diverge, they must not appear to be politically motivated, or public trust — essential to the court’s functioning — will be eroded.

Chief Justice John Roberts characterized the slide in public opinion as “sour grapes” by those on the short end of recent rulings. The court’s biggest decisions have always angered one group of people or another — conservatives and liberals in equal measure. But overall, public confidence in the court remained high until recently.

As Andrew Breiner explained in a Library of Congress blog post, Supreme Court decisions on high-stakes issues have created new political realities in areas where Congress has found itself unable or unwilling to legislate. In appearing to take on this role, justices are celebrated as political allies or reviled as opponents.

Beyond the perceived politicization of the court, we’ve seen a series of ethical lapses by some of its members. For decades, Justice Clarence Thomas has accepted (and not disclosed) trips and gifts from a Texas billionaire who has donated to conservative causes. Institutions hosting Justice Sonia Sotomayor have been prodded by her staff to purchase thousands of copies of books she has authored, generating substantial revenue.

I find myself pining for the good old days when Supreme Court justices were (mostly) admired.

Two years ago, SCOTUSblog took an ingenious approach to assessing the best of the best: an NCAA-style bracket — the perfect tool for a college basketball fan like me.

At the time, 115 people had served as justices. SCOTUSblog narrowed that list to the “Supreme 16” — former justices having “credible claims to greatness.” They seeded each member and ran a series of polls to determine who would advance in each round.

The winner was third-seed Chief Justice Earl Warren, who defeated top-seeded Chief Justice John Marshall. Warren had an auspicious career: Among his landmark opinions are Brown v. Board of Education and Loving v. Virginia, two watersheds for racial justice. Marshall was a worthy opponent. His 34-year tenure as the fourth chief justice formed the foundation of federal law and governance in our young nation.

Restoring public trust in the Supreme Court is necessary for our democratic society. Rather than brushing off the loss of confidence, Roberts must lead the justices in careful introspection — no matter how painful — to determine why it has happened and how it can be fixed. It could be the court’s most important deliberation of the year.

Dinkin is president of the National Conflict Resolution Center, a San Diego-based group working to create solutions to challenging issues, including intolerance and incivility. To learn about NCRC’s programming, visit ncrconline.com