The Supreme Court No Longer Reigns Supreme

Polling often confirms the obvious, but sometimes it is important to be faced with the fact. The NY Times does just today when it reports,

Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views.  Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent.

The loss of respect for the Court is important. Hannah Arendt understood that the Supreme Court was the only institution in American Democracy that could offer stability and authority to the vagaries of democratic will.  The Court is the institution that stands above politics, or at least it used to.

For Arendt, the "great measure of success" of the American experiment in government was the founding of a "new body politic stable enough to survive the onslaught of centuries to come." Arendt writes that the success of American Constitutional Republicanism was secured "the very moment when the Constitution began to be "worshipped." The worship of the Constitution meant that the Court decisions where cloaked in a patina of authority. The Court spoke not for itself, nor for the democratic people, but for the American People constituted as a Republic.

The importance of the Supreme Court was that it lacked power and thus stood outside of politics.

Institutionally, it is lack of power, combined with permanence of office, which signals that the true seat of authority in the American Republic is the Supreme Court. And this authority is exerted in a kind of continuous constitution-making, for the Supreme Court is indeed, in Woodrow Wilson's phrase, 'a kind of Constitutional Assembly in continuous session.

The Court was both a truthteller that stood outside politics and, equally essential, a model of free and reasoned discussion about the core constitutional issues of the day.

The decline of the Supreme Court has a long history. It begins with the innovation of the Justices issuing long and reasoned decisions, something that only becomes common in the early 20th century. The long opinions and multiple dissents pierced the veil of authority and showed the Court to resemble bickering legislatures more than reasonable jurists. Franklin Delano Roosevelt's court-packing scheme further politicized the Court, as did the activism of the Warren Court. But it was only in the 1980s and the bitter confirmation battles along with the litmus tests for judges on issues like abortion and affirmative action that has produced a Court that sees itself as an increasingly politicized body. The Bush v. Gore intervention that decided the 2000 election and most recently the Citizens United decision that made unconstitutional a century-long practice of limiting the influence of money in elections have stripped the Court of its last veneer of authority.

The loss of authority may not be reversible, but nor is it a minor event. How we respond to the loss of the Court's authority—with denial, with an effort to return the Court to its prior glory, with an ever-more partisan and thoughtless politics, or with a concerted effort to create new institutions that will conserve and deepen the sense of who we are as a nation—will go a long way to determining whether the United States' will persist as a beacon of freedom and stability.

-RB