During periods of intense political debate in the U.S., the Supreme Court often becomes a target of harsh criticism.
Jefferson complained of “useless judges” and described the judiciary as “a despotic branch.” Lincoln suggested that allowing the Supreme Court to overrule public opinion could lead “to anarchy or to despotism.” A member of Franklin Roosevelt’s cabinet said that one court decision should “outrage the moral sense of the country.”
Across history, the goals of such criticism have tended to be similar. The critics hope to damage the court’s credibility with other political leaders and the public, making it uncomfortable for the justices to issue unpopular rulings.
Over the past few years, the cycle has started again. With Republican-appointed justices dominating the court — and pursuing an ambitious agenda that does sometimes conflict with public opinion — Democrats are denouncing the court in ways that would have been shocking not so long ago.
“There has been a sea change in the way Democrats view and talk about the Supreme Court,” Carl Hulse, The Times’s chief Washington correspondent, who has been covering Congress since the 1990s, told me. “Democrats used to respectfully disagree with the justices. Now they call them illegitimate and corrupt, partisan and extreme.”
A classic example of the old approach was Al Gore’s deference to the court, even while disagreeing with it, after the justices halted the counting of votes in the 2000 election and effectively made George W. Bush president. Examples of Democrats’ new approach include:
“The problem is not that the Supreme Court is just conservative,” Representative Katie Porter said on the House floor. “The problem is that it is corrupt.”
“Each scandal uncovered, each norm broken, each precedent-shattering ruling delivered is a reminder that we must restore justice and balance to the rogue, radical Supreme Court,” Senator Ed Markey of Massachusetts said.
“The Supreme Court is a cesspool of corruption devastating our communities,” Representative Cori Bush of Missouri said.
“Creepy billionaires ran an ‘op’ to capture the court, just like 19th-century railroad barons would capture the railroad commission that set their rates,” Senator Sheldon Whitehouse of Rhode Island said.
“This activist, extremist MAGA court faces a legitimacy crisis,” Senator Jeff Merkley of Oregon said. “And a legitimacy crisis for the court is a crisis for our democratic republic.”
Hardball, two ways
The criticism has three main sources. One, Republicans refused to allow Barack Obama to fill a court opening in his final year in office, only to help Donald Trump rapidly fill three seats. Two, the court has been impatient and ambitious, as my colleague Adam Liptak has written, willing to overturn precedents (in the case of abortion and other matters) and bipartisan legislation (in the case of voting rights and campaign finance law). Three, most recently, revelations about Justice Clarence Thomas’s undisclosed receipt of gifts from a billionaire and Republican donor have highlighted the lack of accountability for the justices.
Partly for these reasons, the court’s public standing has slipped. Last year, only 25 percent of Americans said they had a lot of confidence in the court, down from 50 percent as recently as 2002, according to Gallup.
Adam Liptak put it this way: “Public confidence in the court has been shaken by two things: the breakneck pace of its conservative supermajority in moving the law to the right and its unwillingness to address questions about the justices’ ethical standards. That combination has left the court vulnerable to political attacks.”
Many Republicans view the recent criticism as unhinged and damaging to American democracy. (James Taranto of The Wall Street Journal has made this argument a theme of recent columns.) According to this view, the liberals criticizing the court are sore losers trying to subvert legitimate court decisions with which they disagree. And the language that some Democrats are using certainly can be severe.
In the context of American history, however, the fight is not so unusual. Republicans and the judges they appointed have decided to use hardball tactics to shape the law, including the stonewalling of Obama’s last court nominee and the aggressive rulings of the current court. Democrats are responding with their own hardball tactics, trying to damage the court’s credibility.
In doing so, the Democrats hope to lay the groundwork for laws that could constrain the court’s authority or change its makeup. The Constitution gives Congress the authority to take such actions, and John Adams, Jefferson and Roosevelt all tried to do so. Adams and Jefferson succeeded, changing the structure of the judiciary. Roosevelt failed to pass his so-called court packing bill, but his criticism of the court — and his popularity — nonetheless seemed to influence the justices: They reversed course in his second term and stopped overruling major New Deal programs.
The judiciary is not supposed to be the dominant branch of the federal government. It is supposed to be one of three equal branches. For now, Republicans have the upper hand because Democrats don’t have the votes in Congress to change the law. But the harsh recent criticism is intended to be an early step in a long campaign to constrain the court.
“When something is broken, we don’t agonize,” Senator Markey said, while castigating the court. “We organize to fix it.”
For more: Senator Mike Lee, a Utah Republican, has defended Thomas against “bullying threats and intimidation tactics.” Jamelle Bouie, a Times Opinion columnist, has argued that Democrats still are doing too little to undermine the Supreme Court’s standing.
Lyna Bentahar and Alain Delaquérière contributed research to today’s newsletter.
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