Though it likely has fewer regular viewers than Judge Judy, the Supreme Court of the United States influences many people’s perceptions of proper judicial behavior. Sadly, not all justices have set a good example.
Justice James C. McReynolds, who served from 1914 to 1941, was not only a strident opponent of Franklin Roosevelt’s New Deal. By most accounts, he was also irresponsible and selfish, a grouch, and a bigot. His antisemitism ran so deep that he refused to even speak to the first Jewish member of the court, Louis Brandeis, for the first three years of Brandeis’s tenure. He refused to sit near him during court ceremonies or sign any opinions written by him.
During the 1932 swearing-in ceremony for Justice Benjamin Cardozo, who was also Jewish, McReynolds is said to have ostentatiously read a newspaper and muttered “another one.” Cardozo’s immediate predecessor on the court, Justice Oliver Wendell Holmes Jr., is said to have compared the infighting and hostility among justices during his three decades (1902–1932) on the court to “nine scorpions in a bottle.”
It’s probably good that, with the exception of oral arguments, interactions among justices occur away from public view. But maybe not. Though opposites in politics and judicial philosophies, Justices Antonin Scalia and Ruth Bader Ginsburg were known to be close friends. Current members of the court seem to want to project an air of civility and collegiality, even after bitter disagreements such as the Dobbs v. Jackson Women’s Health Organization decision that reversed Roe v. Wade.
Justice Neil Gorsuch’s book A Republic, If You Can Keep It was partly a plea for civility in society as a whole. At a 2019 event promoting the book, he said that he and his fellow justices may knock heads during legal arguments, but they still eat together in the same dining room: “We sing each other ‘Happy Birthday,’ we flip burgers at the employee cookout. We can disagree during the day but have fun together by night.”
That civility may be genuine, but it’s also irrelevant. The public doesn’t see cookouts. It sees hyper-partisan confirmation battles and votes that appear to inevitably break along party lines.
Last year, Gallup reported that public confidence in the Supreme Court had fallen to its lowest level in nearly 50 years of polling. Only one in four adults said they have “a great deal” or “quite a lot” of confidence in the court. That was down from 36 percent the year before. That poll was taken before the court had handed down its decision in Dobbs. Seeing how other polls have shown that a majority of Americans disagree with that decision, it would come as no surprise if public confidence in the court hit a new low in 2023.
Remember, public confidence matters because if people lose confidence in the fairness of courts and judges, the justice system will lose its authority. No more companies will agree to garnish the wages of deadbeat borrowers. No more unfit parents will accept having their children taken from them.
Here’s more bad news: The public’s confidence in state courts also appears to be sinking. A 2022 survey by the National Center for State Courts found that 60 percent of the public have a great deal or at least some confidence in the state courts. That doesn’t sound that bad. But it was 64 percent the previous year. Worse, when asked how well the phrase “provide equal justice to all” describes state courts, nearly half (49 percent) said either “not well” or “not at all well.” That was 8 percentage points worse than three years previous.
Justices Sonia Sotomayor and Elena Kagan addressed the dangers of a decline in public confidence in the courts during an appearance at a women’s conference at their alma mater, Princeton University, in 2018. The event took place during the especially contentious confirmation of Justice Brett Kavanaugh.
Sounding like Hamilton in the Federalist Papers, Justice Kagan said, “We don’t have an army. We don’t have any money. The only way we get people to do what we say that they should do is because people respect us and respect our fairness.”
With a slew of consequential cases on its docket and a voting majority whose opinions are likely to differ from the majority of Americans, I fear the Supreme Court faces an uphill battle to restore public belief in its fairness. And that is bad news for all of us farther down the judicial food chain.
We can’t control what the majority of the Supreme Court decides. What we can do is what we’ve always been expected to do: Listen carefully and patiently to those who appear before us. Explain our reasoning thoroughly. Show people the respect that our courts depend on for their existence.