{"id":61024,"date":"2023-11-15T12:59:26","date_gmt":"2023-11-15T20:59:26","guid":{"rendered":"https:\/\/lapost.us\/?p=61024"},"modified":"2023-11-15T12:59:26","modified_gmt":"2023-11-15T20:59:26","slug":"the-supreme-court-vs-the-court-of-public-opinion","status":"publish","type":"post","link":"https:\/\/lapost.us\/?p=61024","title":{"rendered":"The Supreme Court vs. the Court of Public Opinion"},"content":{"rendered":"
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By<\/span>Peter Schurmann<\/a><\/div>\n<\/div>\n<\/div>\n
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While SCOTUS is the highest court in the land, public trust in the institution has never been lower.<\/p>\n<\/div>\n<\/div>\n

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There\u2019s an old joke in DC about how Supreme Court Justices make the worst dates. They won\u2019t take gifts and so insist on paying, but they don\u2019t make that much money, so they choose the cheapest restaurants. (Cue drumroll!)<\/p>\n

You\u2019d be forgiven for not knowing that, based on the\u00a0string of revelations<\/a>\u00a0about previously undisclosed luxury retreats and rolling mansions that some on the bench now enjoy.<\/p>\n

The reality is that while SCOTUS is the highest court in the land, public trust in the institution\u00a0has never been lower<\/a>, one reason why on Monday the court\u00a0released a code of ethics<\/a>\u00a0that many say does little to remedy the situation.<\/p>\n

Recent decisions, meanwhile, on issues ranging from abortion to gun and voting rights show in sharp relief how the court and the opinions of a majority of the American public are moving in near diametrically opposite directions. And, according to Senator Sheldon Whitehouse (D-RI) and Michael Waldman, president of the Brennan Center for Justice, that\u2019s by design.<\/p>\n

\u201cThe court has been an agent of its own reputational destruction,\u201d said Whitehouse,\u00a0co-author of a bill<\/a>\u00a0that would impose 18-year term limits on sitting justices. (The US is among just 5 countries with life tenure for the highest court.)<\/p>\n

Capturing the court<\/h2>\n

Speaking at a\u00a0recent event<\/a>\u00a0co-hosted by the Brennan Center, Whitehouse described a decades-long effort from the right to achieve what\u2019s known as \u201cregulatory capture,\u201d a term that harks back to the Gilded Age of the mid-19th<\/sup>\u00a0Century when railroad barons sought to stack the commission overseeing the nation\u2019s railroads with \u201ccronies and friends.\u201d<\/p>\n

Fast forward to today, and that same strategy is now being applied to the Supreme Court.<\/p>\n

\u201cSome very big special interests are upset because they can\u2019t operate in an open democratic world, so they went dark to capture the court,\u201d said Whitehouse, tracing the origins of this latest hostile takeover of the court to the\u00a01971 Powell Memo<\/a>\u00a0that laid out in detail ways for corporate interests to reassert control over the political arena.<\/p>\n

\u201cThese same billionaires are now enmeshed in the controversies involving Supreme Court judges,\u201d Whitehouse added. \u201cWhen you see the court\u2019s records and the dark money around it, it\u2019s hard to argue this is a legitimate court following traditional judicial principles.\u201d<\/p>\n

Whitehouse points to the recent\u00a0West Virginia v EPA ruling<\/a>\u00a0as an example of how these special interest groups work to shape law and public policy. In its 6-3 decision, the court essentially gutted the regulatory agency\u2019s ability to protect Americans from environmental pollutants. The ruling was based on an unprecedented judicial concept known as the Major Questions Doctrine, which argues a federal agency\u2019s authority does not extend to issues of major political or economic significance.<\/p>\n

\u201cThese words have never been used by the court before,\u201d Whitehouse said. \u201cYou see dark money think tank and academic areas where this notion was planted, fertilized, propagated and then pushed out and these judges picked it up.\u201d<\/p>\n

Whitehouse called the case a \u201cdangerous example\u201d of the court\u2019s interference in the government\u2019s ability to protect Americans.<\/p>\n

A growing backlash<\/h2>\n

Michael Waldman, whose book, \u201cThe Supermajority: How the Supreme Court Divided America,\u201d examines the first year of the court under its current conservative majority, says the justices are \u201cworking aggressively to change the reading of the constitution and thus the country.\u201d<\/p>\n

Alongside the West Virginia case, he highlights two others, the Dobbs ruling overturning Roe v Wade and the\u00a0Bruen decision<\/a>, which said states can only consider \u201chistory and tradition\u201d dating back to the time of the founders and not current safety concerns when it comes to regulating gun rights.<\/p>\n

\u201cDoes this sound like a court or like the caucus of a political party,\u201d Waldman quipped, noting there are inherent structural issues that make the court susceptible to capture. Yes, he says, the court\u2019s structure was designed to insulate justices from undue political influence. Yet the court\u2019s makeup is almost entirely driven by election outcomes for Congress and the Presidency.<\/p>\n

\u201cOne political party has won the popular vote in 7 of the last 8 presidential elections,\u201d explained Waldman, \u201cwhile the other party has chosen 6 of the last 9 justices. The last time the Democrats appointed the court majority was 1970. The last time Democrats appointed a Supreme Court justice was 1946.\u201d<\/p>\n

Both Whitehouse and Waldman agree that there is now a rising groundswell of opposition to the court\u2019s recent tilt to the right, and they stress that any reform efforts \u2013 imposing term limits and introducing biennial appointments, for example \u2013 cannot and should not run ahead of public opinion.<\/p>\n

\u201cThe idea has to be put out there,\u201d said Waldman, noting that for decades conservative groups worked assiduously to make issues like Supreme Court appointments kitchen table issues while those to the left tended to dismiss these more procedural questions in favor of broader causes.<\/p>\n

\u201cThis is a kitchen table issue,\u201d Waldman stressed. \u201cThe most significant constitutional change comes in the court of public opinion.\u201d<\/p>\n

Image via\u00a0Flickr<\/a><\/em><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

ByPeter Schurmann Nov 15, 2023 While...<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[9,7],"tags":[],"class_list":["post-61024","post","type-post","status-publish","format-standard","hentry","category-opinion","category-u-s-a"],"_links":{"self":[{"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts\/61024","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=61024"}],"version-history":[{"count":1,"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts\/61024\/revisions"}],"predecessor-version":[{"id":61025,"href":"https:\/\/lapost.us\/index.php?rest_route=\/wp\/v2\/posts\/61024\/revisions\/61025"}],"wp:attachment":[{"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=61024"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=61024"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lapost.us\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=61024"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}