“Their words are their deeds” justly defines the nine justices of the Supreme Court. Like it or not, their work instructs what government can and cannot do.
Yet rarely do the nine justices go beyond the language of their decisions to clarify contentious rulings. Nor do they engage in the political war of words over accusations of ideological bias owing to the political nature of their appointments.
The 2024 presidential election will test their restraint.
Democrats seek to rein in what they consider an abuse of power by the high court for overturning years of precedent on abortion, government regulations and presidential immunity.
They also object to acceptance of lavish gifts showered on some justices, failure to punish unprincipled personal issues, and reluctance to withdraw from cases with potential conflict of interest.
The root of the Democrats ire is simple. Six justices lean conservative; three justices lean liberal.
Luck of the draw — who occupies the White House when a court vacancy occurs — has favored Republicans, with one exception, in the 21st century. They have five appointments to three for the Democrats. Former President Trump hit the jackpot with three picks.
The exception occurred in the spring of 2016 when GOP Senate Majority Leader Mitch McConnell arbitrarily blocked Democrat President Obama’s nominee Merrick Garland to replace deceased conservative Justice Antonin Scalia, leaving the choice to the winner (Trump) of the fall presidential election.
A Gallup Poll conducted after the Supreme Court’s most recent term showed just 43 % of Americans approve of the way the court is handling its job. Republican respondents expressed satisfaction; Democrat responses overwhelming disapproved.
No surprise since recent big-deal cases decided by the majority conservative bloc have pleased Republicans, especially the 2022 decision revoking the 50-year precedent legalizing abortion nationwide.
Public discussion of the Supreme Court’s loose rules of behavior — exposed by the lavish gifts from billionaires showered on conservative Justices Clarence Thomas and Samuel Alito — has prompted President Biden to urge Congress to enact a strict code of conduct for the justices and members of their families. In addition, he proposes term limits (at least 18 years) instead of lifetime appointments of justices.
Oh, yes, Biden also wants a constitutional amendment reversing the court’s decision granting immunity from prosecution to former presidents who commit crimes as part of their official actions.
None of these changes stand a remote chance of success. Republicans hold a slim majority in the House, and Democrats the same in the Senate. Approving a constitutional amendment can take years and requires ratification by three-fourths of the politically-divided states.
The U.S. Constitution created the Supreme Court as an independent branch of government, with protection from undue influence by the co-equal legislative and executive branches.
Congress cannot interfere with the Supreme Court’s decisions-making role, yet it has a constitutional history of regulating the court’s ethics, reports the Brennan Center for Justice at New York University’s Law School.
Still, the court considers itself the sole authority on how it operates. New rules adopted after the luxurious travel and gifts scandal require tighter reporting of largesse and little else.
There are no penalties for failure to report generosity by wannabe influencers. Nor do they change the practice of giving individual justices the sole authority on whether to withdraw from possible conflict-of-interest cases.
Realistically, however, it is up to the Supreme Court to structure and enforce its rules of conduct. The chief justice has the latitude to corral resistance and raise the court’s image.
The popularity of its major decisions will always depend on who wins and who loses a case. That consequence should not matter since the high court’s role is to administer justice fairly, according to the law and the Constitution — and without regard to outside influences.
The Supreme Court’s work is too important to democracy and American history to ignore flaws the court itself can correct.