Meet the Federal Judiciary’s Credibility Gap’s Real Culprit

Washington, D.C. – Are America's courts suffering from a crisis of public confidence? The chattering class seems to think so, pointing as it does to polling data from organizations like Gallup showing less than a majority of Americans – 47 percent – are willing to say they have “a great deal” or “a fair amount” of trust in the judicial branch.

Given the assault on the Judicial Branch that began when Donald Trump started appointing an unending stream of originalists to the bench, it's amazing the number is still as high as it is. If there's a crisis, it's because the cultural elites who regard the courts as the backstop of liberalism created it after they sensed things were no longer going their way.

The courts still have better numbers than either the Congress or the president, even if its approval rating has dropped by 20-points since 2021 which, Gallup says, is the lowest it's been since it began asking the question in 1972.

To hear some tell it, our basic freedoms are in now jeopardy. Why? Not because a disorganized mob of misfits on Capitol Hill got violent and stupid on January 6, 2021, but because the five justices on the United States Supreme Court who make up a new, relatively consistent, originalist majority are bent on taking them away.

Exhibit A in support of this assertion is supposed to be the decision last term in Dobbs v. Jackson Women's Health Organization. In its opinion, written by Justice Samuel Alito, a George W. Bush appointee, a majority of the court found that penumbras notwithstanding, there is no constitutional guarantee of access to abortion services.

Unlike what was emphasized in the reporting of many journalists and most commentators, the court did not find abortion to be unlawful or unconstitutional. The court simply said the practice enjoys no more protection than other medical procedures, therefore it can – and should – be subject to regulation by either the states or Congress.

The decision makes the issue a matter for democratic institutions rather than legal ones, as it was before Roe v. Wade in 1973. The role of the courts, especially in civil and constitutional matters, should be narrow rather than expansive, as those who organized the government of the United States intended. Allowing the people, through their elected representatives to make the tough calls is the democratic way.

What's going on now as regards the federal judiciary – and the United States Supreme Court in particular – is a more insidious threat to the nation's democratic institutions and traditions than anything that happened on January 6. The attacks on the court's legitimacy pre-Dobbs, as came from the likes of President Barack Obama and Joe Biden on issues ranging from campaign finance and free speech to the extension of the pandemic-era eviction moratorium sinisterly and subtly undermine the court's authority, not just within the halls of government but with the American people.

Attacks on the authority of the court used to be seen as an attack on its ability to function effectively. When former House Majority Leader Tom DeLay, R-Texas, proposed reforms to the Judicial Branch including the impeachment of judges whose rulings he viewed as bizarre – as some of them arguably were – and the creation of a new federal circuit to allow the states lumped into the Ninth along with California to escape the consequences of its – let's call them “wackier” – rulings, those who approve of liberal law-making from the bench turned out in force. “Never before,” their leaders seemed to say on every editorial page of every major paper in the country, “have members of Congress called for a greater debasement of judicial independence – a concept at the cornerstone of our democracy.”

“Such efforts,” they opined, “should be resisted at every turn to the point that even the conversation regarding such matters must be suspended for all time.” You get the idea.

That was then, and as long as there were judges to be found who could do the bidding of progressives who could not get their ideas made law through democratic means, no tinkering with the courts could be allowed.

Now that the winds have shifted, the courts are in the crosshairs. It is once again fashionable to suggest, for example, that the Supreme Court has more work to do than its nine justices can manage. The obvious solution to this problem, they say, is to enlarge the court by adding four or five new seats to it.

This so-called crisis in confidence in the Judicial Branch exists only because the progressives who set the national political narrative have said it does. They created it specifically to allow them to talk about it and make people believe it deserves our attention. They may be trying to influence Chief Justice John Roberts, the American people, or both. Their target is not clear and each matters, but for different reasons.

Roberts, a George W. Bush appointee who is now the closest thing to a swing vote on the court there is, is notoriously concerned about its standing and legitimacy. His critics go further, saying he is “overly concerned” when his focus should be on the Constitution while making up his mind on the cases before him.

He matters because when he is on the prevailing side in a case, he determines which of the colleagues voting with him will write the opinion. When he is in the minority, however, the responsibility for assigning the writing of the opinion falls to the most senior associate justice of the court siding with the majority.

More often than not, that means responsibility for the most crucial part of what the court does – explaining what has been decided and why – falls to Justice Clarence Thomas, whose views on the authority of the state and the role of the courts are more narrow than Roberts'. The appeals to legitimacy over constitutionality may be a nudge intended to get Roberts to take control of the opinion writing more of the time, especially on important issues. That approach, while effective in undermining the court's authority, reveals a profound ignorance regarding its inner workings, especially about how opinions are crafted.

If all the noise about the court's poll numbers is meant to sway the public, it's likely an effort to make the idea of packing the court more digestible. So far, the debate has not been joined in full, the moves toward adding justices thus far being tepid and tentative. Most all the arguments in favor of the status quo likely resonate better with the American public, who see the court-packing proposal as an end run around the actuarial tables to establish a liberal majority that will last through several generations.

The undermining of the court's legitimacy is part of the political process, not the legal and certainly not the democratic one. Everything from the references to its poll numbers to the way the current majority is described – conservative, far-right, hard right – rather than originalist, constitutionalist or even as justices favoring a narrow interpretation of the Constitution's meaning rather than an expansive one – are all notes in the same song. Progressives want to restore the court's position as the final word on liberal causes it's been since FDR and are not especially concerned about how they do it. They reject the idea it should function as the referee in disputes between the branches of the federal government, the states and, on occasion, the people. Equal justice under the law is the goal. We should not lose sight of that. The system we have might be imperfect but, despite concerns about justice delayed being justice denied, it eventually gets there.

The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.

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