There are important cases among the 40 that the Supreme Court has agreed to hear in its new term beginning on Monday, but no blockbusters: nothing like last term’s ruling in the Donald Trump immunity case, or the affirmative action case from 2023, or the abortion and guns rulings from 2022.
The real issue in the new term is about the court itself — that is, the Supreme Court’s increasingly eroding credibility, and what, if anything, the justices are going to do about it.
We have both been critical of the current justices for how their behavior, both on and off the bench, has undermined public faith in the court. Too many of its most important rulings can be chalked up to nothing more than the fact that Republican presidents appointed six of the justices, and Democrats appointed only three. And then there are the alarming ethical lapses of two of the six justices in the majority — lapses that have close connections to their relationships with right-wing megadonors.
The urgent question in this term and those to come is whether the court as a whole, and at least some of the individual justices, has stopped worrying about the impact of its behavior on public confidence in the institution.
Consider recent reporting in The New York Times about how Chief Justice John Roberts approached the two major Trump cases the court decided last term, on immunity and disqualification. Offered repeated opportunities to rise above the partisan fray, the chief justice instead led the court straight into the muck. Justice Amy Coney Barrett’s concurring opinions (as well as the other separate opinions) in both cases were clear: The majority went further than it needed to go to resolve the disputes. The Times’s reporting, based on leaked confidential memos (itself an extraordinary breach of court protocol), suggests that the majority did this knowing that the rulings would be seen as sweeping victories for Mr. Trump — if not with the specific intent to do just that.
Plenty has already been written about the short-term problems with both rulings — including what they mean for the ability of states to enforce the insurrection ban in Section 3 of the 14th Amendment and for the ability of prosecutors to continue the pending cases against Mr. Trump. But the long-term implications are just as ominous: A court that loses its institutional credibility is a court that will be powerless when it matters most.
It isn’t hard to imagine a future President Trump, returned to the Oval Office perhaps with the court’s help, thumbing his nose at the justices should they have the temerity to rule against his policies, as they often did during his first term. (For example, if the Supreme Court rules that some future executive order is unconstitutional, Mr. Trump could nevertheless illegally order law enforcement or administrative agencies to implement it.) Defying the Supreme Court wasn’t politically possible at that time, nor has it been an option for President Biden even as the court has blocked, or refused to unblock, a dizzying array of his domestic policy programs.
But the Supreme Court of 2024 is not the Supreme Court of 2017, 2018 or even 2020. It is a court that has been willing, even eager, to sweep aside decades of settled law. It overruled Roe v. Wade; ended racial preferences in college admissions; greatly expanded the Second Amendment; and kneecapped the administrative state, all in rulings that divided the justices along partisan lines. It is also a court that ignored calls for the disqualification of justices when there was the appearance, if not the reality, of conflict; and reacted to calls for meaningful ethics reform by adopting an unenforceable Code of Conduct that gives half-measures a bad name.
If Mr. Trump turns against a Supreme Court with a Republican supermajority (as his running mate, JD Vance, has proposed), who would support the court? Mr. Trump’s base? Hardly. Congress, unable to enact real reforms? Critics?
If this scenario sounds far-fetched, consider a real case. In January, a 5-4 majority (with Chief Justice Roberts and Justice Barrett joining the three Democratic appointees in the majority) issued an unsigned, unexplained order clearing the way for the Biden administration to continue removing razor wire that Gov. Greg Abbott of Texas had ordered to be placed along the U.S.-Mexico border. The governor had done so ostensibly to deter unauthorized border crossings, but the razor wire also hindered the ability of the Border Patrol to do its job. Within hours of the ruling, Representative Chip Roy, Republican of Texas, was on Fox News calling on Mr. Abbott to defy the Supreme Court.
Mr. Roy’s comments received little national attention because they were entirely unnecessary. The Supreme Court’s ruling was so narrow — allowing the federal government to temporarily remove existing razor wire — that there wasn’t much for Mr. Abbott to defy. But the speed with which a leading House Republican took to the airwaves to encourage Republican political leaders to ignore a Supreme Court ruling ought to have sounded alarm bells — especially inside the Supreme Court.
This point appears lost on the justices. For as much as some on the court and its public defenders may see calls for reform from people like us as a threat to the institution, continuing to act in a way that erodes whatever credibility the court has left is an even greater threat — not just to the court, but to the Republic.
A court without legitimacy is a court unable to curb abuses of political power that its rulings may well have enabled. It is a court that will be powerless when the next Chip Roy calls for disobedience because it will have long since alienated those who would otherwise have defended it. It would become a court powerless to push back against the tyrannies of the majority that led the founders to create an independent judiciary in the first place.
Heading into the new term, the justices should embrace meaningful institutional reforms within their control, like a mechanism for monitoring their compliance with the relevant ethics and financial disclosure rules; far more transparency about how the court chooses when to take up new cases and when to intervene before cases reach the justices; and even changes to how they choose which cases to hear so that they reflect more than the top agenda items of the conservative legal movement.
Before it is too late, the justices have to take the court’s institutional credibility far more seriously — not as an exercise in optics, but as an obligation to persuade those who don’t share the majority’s politics that the court is doing something other than picking sides.
The post The Supreme Court Itself Is This Term’s Blockbuster appeared first on New York Times.
