Much of the court’s image problem stems from a sense that it has become politicized, whether it’s the refusal of Republicans to allow a vote on Obama nominee Merrick Garland in 2016, or the fact that a judge refuses to recuse himself from cases that spouses may be involved in an attempt to subvert the republic (public trust in the court among Democrats is just 13 percent); It is also driven by the court’s recent decision to overturn the 50-year-old precedent in Roe v. Wade. The poll came before that decision, but after Justice Samuel Alito’s draft of the majority opinion was leaked to the press. But this court has brought upon itself much of the judgment of its legitimacy. It has abdicated its most important and profound responsibility – the safeguarding of basic constitutional rights. And he has done so in a series of decisions that are overtly political, wildly inconsistent, and in some cases wrong on basic facts. Abortion rights activists are marching on the White House to denounce the US Supreme Court’s decision to end federal protections for abortion rights.
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In addition to overturning a previous half-century guaranteeing the right to abortion, during this term the justices also overturned a 10-year-old precedent on the right to competent counsel, a 50-year Establishment Clause precedent, and another 50-year-old precedent allowing for people to sue federal law enforcement officers. In Shinn v. Ramirez, the court held that federal courts are prohibited from considering recent evidence of an inmate’s innocence, even if the inmate has shown that his attorneys were incapable of failing to discover that evidence at trial or during appeals. Barry Jones, one of the death row inmates in that case, is probably innocent. The court did not rule that it found Jones’ claims of innocence unpersuasive. Instead, it held that even considering the evidence of Jones’ innocence would undermine Arizona’s sovereignty. It should go without saying, but any justice system that willingly ignores evidence of a death row inmate’s innocence is, fundamentally, illegal. During oral arguments, several justices — including Chief Justice John Roberts, as well as Justices Clarence Thomas and Brett Kavanaugh — acknowledged that the Arizona decision would essentially overturn that precedent. They voted for it anyway. Two justices—Roberts and Alito—even reversed their own votes from the earlier case, without explanation. Justice Thomas’s majority opinion also contained a critical factual error. Thomas claimed that Barry Jones’ lawyers conceded that Jones would lose his state appeals if he was not allowed to present new evidence of his innocence. Even the state admits Jones never made that concession. But Thomas’ mistake will make it even more difficult for Jones to convince the Arizona courts to retry his case. However, the court refused to correct the error. Finally, even though the majority ruled that Jones must pay for his attorneys’ mistakes, it gave Arizona prosecutors a pass for their own critical mistake. Prosecutors are given leniency. Prisoners must be perfect. And if the court itself makes a mistake, then the prisoner pays for it. Unfortunately, these kinds of errors in highly consistent opinions are not uncommon. Perhaps the worst example is a 2002 opinion in which Justice Anthony Kennedy relied on a discredited pop science article about the recidivism rate of sex offenders. Since then, that decision has been cited by dozens of lower courts across the country to justify a variety of draconian policies, from residency restrictions to indefinite detention. The court had several opportunities to correct the error. Has not. The Supreme Court from 30 June 2022
Fred Schilling, United States Supreme Court Collection
The court has also relied on demonstrably incorrect allegations of fact in rulings on no-knock raids, drug dogs, police checkpoints, prosecutorial misconduct, strip searches, and police brutality. None of these were ever fixed. In the school prayer case this past term, the majority and dissenters could not even agree on an easily verifiable fact at the heart of the case – whether a football coach’s prayers were offered in private and on his own time or in public spectacles that might he was coercive to his players. (The record points quite convincingly to the latter. ) The court has also been inconsistent about how and when it applies legal doctrines, leading to the understandable impression that there is no set rule of law, just a range of theories from which judges can choose to support their preferred outcome. One example is the concept of federalism—how much of government should be administered at the federal level versus how much by the states. In Shinn, the majority set aside the presumptive innocence of a convicted Arizona man under the court’s 30-year attack on the right to federal habeas corpus, or the ability of state prisoners to review their convictions in Federal court. (The court found a 10-year precedent, but in this case the precedent—which created a very narrow path to federal court for some prisoners—was the anomaly.) In fact, the Supreme Court has consistently held that federal judges must defer to state court decisions on constitutional rights—even when the state courts are wrong on matters of constitutional law. But the Supreme Court has also been willing to intervene in state courts when it wants to uphold convictions, such as in 2015 when it overturned a Maryland appeals court’s decision to overturn a conviction it had won on questionable forensics. This term’s case regarding suing federal police officers also demonstrates this court’s tendency to choose whatever legal theory suits its interests. The majority overturned the 1971 case of Bivens v. Six Unknown Named Agents. In that case, the court reasonably held that when federal law enforcement officers violate the Constitution, the victim should be able to sue those officers in court. Judicial conservatives never liked this decision, arguing that it was a judicially created remedy for rights violations that was never approved by Congress. But the whole point of the Bill of Rights is to explicitly list those rights that are so important that they cannot be voted on or legislated. Even here, the court has been selective about when it assigns to political entities. The doctrines of qualified and absolute immunity protect police and prosecutors, respectively, from being sued when they violate someone’s constitutional rights. Like Bivens, these are doctrines the court created out of whole cloth, and with qualified immunity the court actually defied the will of Congress. But those doctrines protect law enforcement, while Bivens allows them to be sued. It is clear that the court has expanded the first, and now eliminated the second. Conservatives and institutionalists, including Justice Thomas himself, have appeared upset with the court’s declining stature and have placed the blame squarely on the court’s critics. But there is a parallel between the court’s current legitimacy crisis and its handling of wrongful convictions. The court has long taken the position that the integrity of the judicial system requires protecting the finality of convictions when there is clear evidence that the system erred. But turning a blind eye to false beliefs in the name of “finality” does not lend real integrity, only the illusion of it. Similarly, defenders of this court blame its vertical power not for its increasingly partisan rulings, disregard for precedent, and refusal to uphold the Bill of Rights, but for the public’s failure to properly respect it. This does it exactly backwards. Power does not come from robes, or grandeur, or neoclassical columns. In democracy it is won. And this court has not won it.
