by Ben Whedon
After several decades of conservative control of the Supreme Court and a string of rulings against their legislative and social priorities, Democrats and left-leaning media appear to be mounting an all-out assault against the judicial branch, casting doubt on its legitimacy and impartiality, while working to undercut the reputations and credibility of its more conservative justices.
Ostensibly conservative since the appointment of Chief Justice William Rehnquist in 1986, the court has generally not attracted comparable partisan scrutiny to the extent that it has under the Biden administration. The Roberts court, however, currently boasts three justices appointed by former President Donald Trump, who have solidified the court’s conservative character and handed conservatives decades-sought wins on abortion, gun rights, and affirmative action.
On Friday, for instance, the court ruled 6-3 against an administrative restriction from the Bureau of Alcohol, Tobacco and Firearms (ATF) that banned devices attached to semi-automatic weapons that improve their rate of fire, generally known as “bump stocks.” The ruling marked a win for Second Amendment advocates.
Far from an isolated incident, Supreme Court rulings have in recent years have managed to overturn decades-long practices and even long-standing precedents that favored left-wing politics. Said decisions have set off a firestorm of criticisms against the court as an institution, both of its power and ideological leaning, as well as the justices themselves. The Democrats and left-wing activists have expanded public criticism of the justices, formerly a rare occurrence, and have pursued legislative curbs on the court while some justices have even seen journalists release of private recordings of their conversations.
Conservative court wins
Apart from the bump stock case on Friday, the current court has handed down a number of landmark cases, most notably the Dobbs v. Jackson decision in 2022 that overturned the constitutional precedent establishing a federal right to abortion set in Roe v. Wade and returned the authority to regulate the procedure to the states.
One year later, the court ruled against the use of race in college admissions in cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. Chief Justice John Roberts wrote for the majority, saying “Many universities … have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
More recently, the court sided with former President Donald Trump in a dispute over his eligibility to appear on state ballots in light of his alleged role in the Jan. 6, 2021, riot at the U.S. Capitol. Several states had attempted to argue that Trump’s role constituted an “insurrection,” and that a provision of the 14th Amendment would bar him from office. The court disagreed and determined – unanimously, including the more liberal-leaning Justices – that the states had no authority to make such a decision.
Politicizing the court as an institution
President Joe Biden, for his part, has consistently criticized and questioned his disfavored rulings, repeatedly suggesting that the court had acted in an unusual manner.
“This is not a normal court,” he said last year in the wake of the affirmative action ruling. “While the court can render a decision, it cannot change what America stands for,” he also said. He later told MSNBC that the court had “done more to unravel basic rights and basic decisions than any court in recent history.”
He further fumed over the Dobbs decision, saying at the time that it represented “the culmination of a deliberate effort over decades to upset the balance of our law” and that the decision was “a realization of an extreme ideology and a tragic error by the Supreme Court.”
In the wake of the landmark gun control decision in New York State Rifle & Pistol Association v. Bruen, moreover, Biden said it “contradicts both common sense and the Constitution, and should deeply trouble us all.”
Court packing?
Biden at one time voiced opposition to expanding the Supreme Court, saying in the 2023 interview with MSNBC that “[i]f we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that’s not healthy.”
But like all political parties, the Democrats are not a monolithic entity. In 2022, some House Democrats began to openly push for legislation that would add four additional seats to the bench, contending that the GOP had already engaged in court packing with its handling of prior vacancies and Trump’s nominees. “The nightmare scenario of GOP court-packing is already upon us… That’s how they got this far-right 6-3 majority in the first place,” Rep. Mondaire Jones, D-N.Y., said at the time.
That effort went nowhere, however, and polling data from the Florida-based Mason-Dixon Polling & Strategy last year suggested that 68% of Americans opposed such an effort while only 25% supported it, including 44% of Democrats.
Not the first time
Attempts at adding more justices are not new. Seeking justices who might balance out the jurisprudence that restricted his “New Deal” programs, Franklin Roosevelt tried and failed to do the same thing in 1937.
FDR’s plan was to pass a law that would allow the President to appoint an additional justice for every sitting justice who was over 70 years of age. Roosevelt could add six of his own justices to the court. With two liberals already on the bench, that would put the odds in FDR’s favor. Within five weeks of FDR’s announcement, the “court-packing plan,” as it came to be known, was doomed in the Senate.
A few months later, the Judiciary Committee had sent a report with a negative recommendation to the full Senate.
Taking aim at the justices themselves
Associate Justices Clarence Thomas and Samuel Alito are widely regarded as among the court’s most conservative members and were appointed by President George H.W. Bush and President George W. Bush, respectively. Alito, for his part, authored the Dobbs decision and the pair sided with the conservative majority the affirmative action and a multitude of gun control cases.
The pair came under fire directly last year, beginning with a series of reports from ProPublica, which focused on Thomas’s longtime relationship with GOP megadonor Harlan Crow and the myriad trips the families took together.
At the time, Thomas insisted that he was not required to disclose vacations for which Crow paid, though last week he amended his disclosures to include several 2019 trips that Crow paid for. Senate Judiciary Committee Democrats then subsequently released documents revealing other trips that Thomas took with Crow that he did not disclose.
Alito, last year, disclosed a 2008 vacation to Alaska in which he traveled on a private plane and was hosted by hedge fund billionaire Paul Singer, who later had business before the court. Alito has subsequently attracted scrutiny over the flying of an upside down flag at his home after the 2020 election, which he said his wife flew in response to “a neighbor’s use of objectionable and personally insulting language on yard signs.”
Scrutiny of the conservative justices, however, spilled over into ethics reporting on the court’s left-leaning justices, including reports that Associate Justice Sonya Sotomayor’s staff had selected venues that hosted her appearances with an emphasis on selling her memoir and/or children’s books. According to The New York Times, Justice Sotomayor has received about $3.7 million total for her memoir.
An internet search of ProPublica’s website did not yield any reporting about Sotomayor’s millions in windfalls, but did include it buried in a database of all of the Justices’ connections. Similarly, ProPublica did not conduct any investigative reporting into Sotomayor’s – and Justice Gorsuch’s – failures to recuse themselves from cases that came before the court over the past decade involving a publishing company that paid them sizeable advances in lucrative book deals.
The same far-left billionaire funded outlet did, however, publish a story about Justice Alito’s failure to recuse himself from a case involving a Republican mega-donor who picked up the tab for an Alaskan fishing trip for Alito.
ProPublica was founded in part by multi-million dollar gifts from Herbert and Marion Sandler, who Time Magazine called two of the “25 People to Blame for the Financial Crisis” after they pocketed $2.3 billion by helping popularize an adjustable-rate mortgage blamed in part for the housing crash.
Reform efforts
Amid the public scrutiny, Senate Judiciary Committee Chair Dick Durbin has spearheaded a number of efforts to address ethics concerns within the Supreme Court, including investigations. Following the publication of documents showing the additional trips Thomas took with Crow, he said “we are providing the American public greater clarity on the extent of ethical lapses by Supreme Court justices and the need for ethics reform.”
Earlier this week, Durbin attempted to advance the “Supreme Court Ethics, Recusal and Transparency Act,” though Republicans blocked the effort.
“In November of last year the Supreme Court adopted an ineffective code of conduct for its justices but it did not enforce the ethics rule in any meaningful way and does not include a mechanism to address violations of the code,” Durbin said.
Apart from legislative efforts, however, Democrats have seized on the reports to push for the recusal of those justices in key cases. In Alito’s case, for instance, House Minority Leader Hakeem Jeffries demanded that the justice apologize over the “upside down” U.S. flag incident, contending that he ought to recuse himself from Jan. 6-related cases over the matter. The upside down flag has sometimes been used by Trump supporters to signal their doubts about the 2020 election’s legitimacy.
“Samuel Alito should apologize immediately for disrespecting the American flag and sympathizing with right-wing violent insurrectionists,” Jefferies said last month. “He must recuse himself from cases involving the 2020 election and former President Donald Trump … The Constitution demands and the American people deserve more from a justice serving on the highest court in the land than baseless election denial.”
Alito, in turn, refused to do so.
This week, liberal activist and documentary filmmaker Lauren Windsor published recordings of her discussion with Alito in June 2023 in which he blamed the media for eroding public trust in the court, raising eyebrows among more traditionally balanced media critics about Windsors’ ethics.
Last December, moreover, Durbin took aim at Thomas and sought his recusal from the case addressing Trump’s immunity claims in light of the support expressed by Thomas’ wife, Ginni, for the former president’s election fraud assertions. “There are so many unanswered questions about the relationship of the justice and his family with the Trump administration that I think in the interests of justice, he should recuse himself,” he said at the time.
Thomas did not recuse himself and the court heard oral arguments in April.
In yet another effort, Senate Democrats sought a meeting with Chief Justice John Roberts to discuss ethics issues, though he declined to meet with them at the end of last month.
Is it having an impact?
Public opinion of the court’s performance can vary to some degree based on the issue, though the court’s overall image has noticeably declined over the past several years.
A Marquette Law School survey published in April revealed that 47% of adults approved of the court while 53% disapproved. In February, the court earned 40% approval and 60% approval.
May data from the same pollster, however, showed that the court’s image took a downturn, with 39% of U.S. adults approving of the court’s job compared to 61% who disapproved. Those figures marked the lowest approval ratings for the court since July 2022.
Over a broader period, moreover, the court’s image has fallen further. In July of 2021, for instance, the court’s numbers were nearly reversed, with 60% approving and just 39% disapproving of its performance.
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Ben Whedon is an editor and reporter for Just the News. Follow him on X, formerly Twitter.
Photo “Justices” by Supreme Court of the United States.
