In the wake of the highly contentious confirmation hearing of Justice Kavanaugh, the Justices are speaking out about the importance of the Supreme Court’s independence from politics.
At an event last week at the University of Minnesota Law School, Chief Justice John Roberts made a point of saying that he wanted to discuss “events in Washington in recent weeks.” “Our role is very clear: We are to interpret the Constitution and laws of the United States, and to ensure that political branches act within them,” Roberts explained. “The story of the Supreme Court would be very different without that kind of independence. Without independence, there is no Brown v. Board of Education.” The justices, Roberts stressed, “do not serve one party or one interest, we serve one nation.”
Last week, Justice Clarence Thomas spoke in Covington, Georgia, at a dedication ceremony for an addition to the county courthouse, and he too emphasized the need for the Court to remain apart from politics. “It is becoming increasingly common for public opinion to galvanize behind particular outcomes and around particular interests without regard for the law or an objective assessment of facts,” he warned. “In our great country, the judiciary is not a puppet for those in power, nor is it the engine for pioneering social change. Rather, it is a safeguard against tyranny, and an assurance of neutral arbiters for those seeking the protection of the law.”
Justice Elena Kagan also recently spoke about the public perceptions of the Court. In remarks at a Princeton University conference earlier in the month, she warned of the consequences of a Court that the American people see as a partisan institution. “In the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn’t predict in that sort of way,” she explained. As a result, the Court looked “as though it was not owned by one side or another and was indeed impartial and neutral and fair.” She worried that this “sort of middle position” may be gone. Kagan emphasized this concern: “I think especially in this time when the rest of the political environment is so divided, every single one of us has an obligation to think about what it is that provides the Court with its legitimacy.”
Justice Sonia Sotomayor, who also attended the Princeton event, echoed Kagan’s comments. “We have to rise above partisanship in our personal relationships,” she said. “We have to treat each other with respect and dignity and with a sense of amicability that the rest of the world doesn’t often share.”
The Justices are speaking out in defense of the Supreme Court at a time when many believe its authority is at risk. Numerous commentators have predicted that the appointment of Kavanaugh has precipitated a legitimacy crisis for the Court.
According to Gallup polls, public confidence in the Supreme Court has been in decline since the 1970s. The percentage of the American public who have a “great deal” or “quite a lot” of confidence in the institution is currently in the thirties, down from the high forties to low fifties in previous decades. The significance of these numbers is not self-evident, however, since public confidence in most political and social institutions has dropped in recent years. In March, a Pew Research poll found that two-thirds of the American people viewed the Court in favorable terms.
In the coming years, scholars will be trying to assess the long-term impact of the Kavanaugh hearings on attitudes toward the Supreme Court. Meanwhile, the justices keep busy making the case for the value of an independent judiciary.
Written by ISCOTUS Fellow James O’Brien, Chicago-Kent Class of 2021, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Directors and Chicago-Kent Faculty Members Christopher W. Schmidt and Carolyn Shapiro.