How The Supreme Court Is Destroying Its Own Legitimacy

Justices of the Supreme Court have repeatedly claimed that the decisions about what cases to decide and how to decide them are not affected by politics. Justice John Roberts said in his confirmation hearing that he is like an umpire, not a batter. Justice Neil Gorsuch said that justices are not like “politicians with robes.” Shortly after her confirmation, Justice Amy Coney Barrett told an audience that her goal was “to convince you that this Court is not comprised of a bunch of partisan hacks.”

The justices are not convincing the American people. Favorable ratings of the Court have declined dramatically, according to numerous polls. This fall, a Gallup poll found that 58% of Americans “disapprove” of the job the Court is doing, which aligns with the 60% who disapproved of overruling Roe. A substantial majority have lost faith in the Court’s vaunted impartiality and believe it is too affected by “politics.” A Quinnipiac poll conducted after the Dobbs leak in May of last year found that 63% of Americans believe the Supreme Court is mainly motivated by politics. A Yahoo poll around the same time found that 74% believe the Court is “too politicized.”

The Court’s wounds are entirely self-inflicted. It has a far-right agenda and the scholarship informing its decisions is often questionable. Worse, new details have come to light of relationships some justices have had with wealthy ideological soulmates, including those with interest in cases before the Court. The Court’s credibility and the public’s acceptance of its decisions depends upon trust that it is not subject to outside influence. While lobbying may be common and acceptable in the legislative and executive branches, it is not — nor ought not to be — conceivable in our courts.

Unethical Lobbying

In November of last year, the New York Times reported that a former antiabortion activist, Rev. Rob Schenck, learned of the Court’s 2014 decision in Burwell v Hobby Lobby and its author (Justice Samuel Alito) days before it was publicly announced. Rev. Schenck more recently repeated his account of the leak before the House Judiciary Committee and added some details. At the time of the Hobby Lobby decision, he was the leader of a Christian ministry called Faith and Action. He recruited wealthy Christian couples as “stealth missionaries” to befriend Supreme Court justices and lobby them on issues like gun rights and abortion — an effort he called “Operation Higher Court.”

Schenck says that one of those couples, Gayle and Don Wright (now deceased) had a dinner with Justice Alito while Hobby Lobby was pending, after which Gayle relayed back that Justice Alito was writing the opinion and that Schenck would be happy with it. Justice Alito and Ms. Wright have both denied the leak, but no one has denied the efforts by Schenck and his nonprofit to directly lobby certain justices on contraception and abortion issues. Indeed, the Wrights socialized with Justices Alito, Scalia, and Thomas and happily occupied guest seats for arguments provided to them by “Nino and Sam” (Scalia and Alito). Gayle Wright sent Schenck a message after the decision saying, “I sent your email about [the] [H]obby lobby case to Sam [Alito]… He sent me an email back saying he appreciated your comments very much. How about that?”

“How about that,” indeed. Supreme Court justices have maintained and even encouraged relationships with persons deeply interested in their decisions and who share their political views. The relationships become so familiar that they refer to the justices by their first names, “Nino” and “Sam.”

Schenck’s level of access was undeniable. He arranged for the president of Hobby Lobby to attend a Court Christmas party in hopes of discussing his views with the justices in attendance. Schenck was also invited by Justice Thomas into his chambers to see a plaque of the Ten Commandments given to Thomas by Gayle and Don Wright.

One of the primary ways Schenk and others obtained the access necessary to build these relationships was through the Supreme Court Historical Society, a nonprofit ostensibly engaged in educating the public on the Court’s history. The New York Times reported that in the previous ten years, the society has raised more than $23 million dollars from donors, a substantial but unknowable chunk of which came from corporations, interest groups, and lawyers who have an interest in cases pending before the Court. The society has a black-tie dinner in New York City, attended by all the justices, at which generous donors receive special recognition. Contributors get to rub shoulders with the justices at the dinner and other events. Schenk encouraged his own donors and others in the antiabortion movement to become trustees by donating at least ten thousand dollars. That is one way Gayle Wright built her “missionary” relationships.

The society and its leadership deny that contributions influence matters before the Court, but that is not the point. The donors do not think they are buying results in particular cases. They think that their contributions give them access to justices, just as lobbyists use candidate fundraising to gain access to Congress and the White House.

No Ethical Guiderails

Despite its protestations of impartiality, the Court stubbornly refuses to be bound by the ethical rules that govern every other federal judge in the country. Those rules, embodied in the Code of Conduct for United States Judges, prohibit ex parte communications between judges and persons interested in their decisions and demands that judges avoid impropriety and the appearance of impropriety in all their affairs.

They likewise require recusal when a judge’s impartiality might reasonably be questioned or when a decision might affect a judge’s personal interest or the interest of a family member, and they prohibit fundraising for charitable organizations — even educational ones. By their refusal to be bound by these rules, the justices explicitly maintain that they may engage in conduct which for all other federal judges would be unethical. That includes indulging in the kind of relationships that have just been disclosed and presiding over cases in which a justice’s spouse, such as Justice Thomas’s wife and January 6 insurrectionist Ginny Thomas, is a vigorous advocate for or against a cause before the Court.

Result-Oriented Opinions

The six justices in the majority have signaled that they intend to select and decide cases in a way that advances goals of the far right, notwithstanding the pretense of calling “balls and strikes.” They have now issued multiple decisions in which they unashamedly torture precedent and rely upon biased recitations of history to support their desired outcome. There’s no denying this Court and its supporters care more about the results than the reasoning.

When justices vote on a specific case as the president who nominated them promised they would, the public justifiably perceives that this branch of government is no less political than the other two. When the explanations for their votes appear to be shallow or disingenuous, the skepticism mounts further.

The majority’s explanation in Dobbs v Jackson Women’s Health Organization for overruling Roe v Wade was that the Constitution did not contain a right to abortion and no such right was recognized at the time of the Fourteenth Amendment. This reasoning is shallow by any standard. By that rationale, there would be no right to obtain contraceptives, to marry a person of another race or of the same gender, or to the privacy of sexual conduct between adults. The dissenters wrote that the only reason the majority overruled Roe is because they have always despised it and went on to point out that the reason women did not claim a right to abortion in 1868 was that they had no rights at all. The dissenters got it right, but to those who oppose abortion, including Justice Alito’s dinner companions, whether the reasoning was sound or not is entirely irrelevant.

Similarly, in New York State Rifle and Pistol Assn v. Bruen, the Court twisted the text of the Second Amendment and misrepresented the history of firearm regulations in England, the colonies, and this country to justify invalidating virtually all state regulation of gun possession. The decision entirely ignored the harm to human life that it will cause, as well as the relevant history of firearms regulation and outright prohibition, but it was a victory for conservatives as well as for the gun lobby, which had donated multiple millions to the cause. None of them complains about hypocrisy.

This term in Moore v Harper, the Court is considering the bizarre notion that state legislatures are uncontrollable by state courts in deciding the manner of elections. It could not arrive at such a conclusion without some creative reinterpretations of the nation’s history. Even if the Court does not go so far as conservatives want, the fact that it has decided to hear the case at all is encouraging to those opposed to free and fair elections. The people who deny that President Biden won the 2020 election are salivating over the prospect of state legislatures having the final say on who wins and who loses the next one.

The Supreme Court is running the risk that it will lose its credibility and its decisions will no longer be accepted by the majority of Americans. In an interview last year, Professor Laurence Tribe put it succinctly. The danger, he said, is that if the court “becomes so headstrong and so out of touch with modern reality and so unwilling to listen effectively to counterargument and so agenda-driven and so committed to its, really, alternative facts,” then it’s likely people will eventually “start defying what it says.” He warned that point is getting closer.

This Court’s conservative majority is clearly committed to arriving at its preferred results. As Professor Tribe said, “when they’ve got the votes, they don’t even care about the reasoning.” It also seems that they do not care about the decline in credibility for which they are responsible. They are imposing an agenda and feigning impartiality. In the process, they put at risk the role our Constitution envisioned for a branch of government not affected by politics — and our democracy itself.

William W. Taylor III is a founding partner of Zuckerman Spaeder LLP and one of the country’s foremost litigators.