A September poll by Gallup, an American analysis company known for public opinion surveys, reveals a 9% decline in the approval rating of the Supreme Court. Currently, per this poll, 53% of Americans disapprove of the Supreme Court’s performance. Gallup notes that this is the lowest approval rating in a decade. Similar dips could be seen following the court’s expansion of government power to take personal property, the weakening of a major voting rights law, the legalization of same-sex marriage, and the allowance of colleges to use race when considering college admissions. While public opinion wavers slightly whenever a ruling is made, the new lows in public approval are only a single drop in the ocean of controversy that has loomed over the Supreme Court in recent years.
To my readers who are unfamiliar with the Supreme Court, let me fill you in. The United States Supreme Court is the highest judicial body in the United States of America. It is the court of last resort and has the power to reshape how the Constitution is interpreted by courts, lawyers, and policymakers across the nation. Members of the court, called justices, are nominated by the President and then confirmed by the Senate. The Supreme Court currently has nine members: Chief Justice John Roberts and Associate Justices Clarence Thomas, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett. Of those nine justices, six were nominated by Republican presidents, including three (Justices Gorsuch, Kavanaugh, and Barrett) who were nominated by former president Donald Trump.
The federal court system has, in recent years, become a weapon of political means. Republicans, especially, use their judicial appointments as a means of controlling government outside electoral politics and to excite their conservative base. Donald Trump appointed 234 federal judges in his four years as president, which is much more than Obama’s average of 165 appointments every four years, or George W. Bush’s average164 judges per term. In the past, the confirmation of judges was a speedy and thorough process with skill and experience of the nominees, rather than the appointing party, being considered.
Both Democrats and Republicans helped chip away at the nonpartisan manner of nominations. Democrats, in 2013, invoked a procedural maneuver called the nuclear option to change the votes needed for non-Supreme Court nominees from three-fifths (60 votes) to a simple majority (51 votes). This unprecedented move was copied by Senate Republicans in 2017 to allow Supreme Court nominees to be confirmed in a simple majority.
Senate Republican leader Mitch McConnell is the architect behind Republican efforts to “pack” the courts or, in other words, fill up vacancies with candidates of a certain ideology. Under the Republican-controlled Senate, Barack Obama’s nominee in 2016 wasn’t even considered because Senator McConnell invented a new precedent in which nominees couldn’t be considered in an election year. This enraged Democrats who were eager to add a liberal to the court. What was even more enraging was when, after Justice Ruth Bader Ginsburg died less than two months before an election, Mitch McConnell rushed through Trump’s nominee with little of the processes that accompany such a prestigious position.
The controversy has only grown more and more fraught as the Court faces fresh criticism with the current judicial session. An emergency order allowing Texas’s restrictive abortion bill to remain active while it was being considered by lower-level courts was approved through the so-called ‘shadow docket’. The Texas abortion law allows any person to sue anyone who assists another in obtaining an abortion after six weeks of pregnancy. The law is being challenged under multiple harmful provisions including the violation of the major abortion rights case Roe v. Wade (1973). The shadow docket, as coined by University of Chicago law professor William Baude in 2015, is the more nefarious term for the use of emergency orders and summary decisions by the Supreme Court to make decisions without many briefings or much time to make a ruling. This process is biased, lacks transparency, and has a lack of accountability.
The controversy surrounding the Supreme Court even spurred President Joe Biden to establish an investigative and research commission to explore ways to reform the Supreme Court. The Presidential Commission on the Supreme Court of the United States consists of legal scholars and experts from across the political spectrum. The Supreme Court commission, as it is informally called, is one of the many groups attempting to reform an institution that is seen by some as unfair or corrupt.
Some Democrats shy away at the progressive solution to the unfairness: expand the Court’s size to appoint more liberals. In my opinion, however, this only adds to the problem of corruption and politicization. To expand the court to appoint liberal justices implies that the justices are being chosen solely for their political beliefs rather than experience or ability. Additionally, the expansion of the court is begging Republicans to do the same thing to expand their majority, leading to an endless cycle of Supreme Court volleyball, in which the court is slammed back and forth between parties.
Other solutions for reform that are more popular are also better suited to preserve the Court’s integrity. A term limit (18 years being the favored length) would allow openings to happen every two years, regularizing appointments and allowing justices to serve a long term, but not for life. Additionally, age limits seem like a good option. As justices grow older and less healthy, intense conversations over a successor emerge. Also, having a 90-year-old make a decision that impacts America for decades is not a good idea from a youth’s perspective. Another idea is the panels proposal in which a handful of the 150-200 judges of the lower federal appellate courts get selected in random lottery to decide Supreme Court cases every few weeks. For that to work, you would need partisan-balance requirements or supermajority requirements to prevent ideological swings back-and-forth.
Overall, as a youth who sees the political climate in America deteriorating and the constitutional pillars which support the liberties I and millions of others in joy shaking, I am eager to prevent a key American institution, a leg on a three-pronged stool, from collapsing. It is necessary to protect the liberties and rights we enjoy, and to witness the last resort in defending those rights become a political football is less than joyous. While America is a strong country with a strong constitution and strong national beliefs, the partisanship and polarization tearing the country apart are our greatest threat. As the second President of the United States John Adams said: “There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution.”