After all, the Founders made it so one politician (the president of the United States) nominated justices who then must be approved by a majority of politicians (the U.S. Senate). Once seated, justices are expected to avoid the seamier side of politics. They don’t endorse candidates. They sit on their hands during presidential State of the Union addresses. Of course, it’s accurate that most choose to retire during the administration of a president whose ideology is close to theirs, so even on the bench they obviously can’t wall themselves off from all parts of politics.
None of this has stopped activists from politicizing the workings of the highest court in the land. And that effort is paying off. A recent New York Times/CBS News poll found that only 44 percent of Americans find the court’s job performance favorable; 36 percent disapprove. By a large majority — 3-in-4 — Americans suspect justices allow their own personal biases and experiences to influence their rulings.
Last week’s polling results represented a significant drop in public standing during the past two decades or more. However, over the course of the nation’s history, public displeasure with the Supreme Court is nothing new. Those old enough to recall “Impeach Earl Warren” bumper stickers or able to recite the history to recall FDR’s battles with the court will agree. The debate over the proper role of the federal courts is as old as the nation itself.
The latest wave of displeasure has its roots in the 1973 Roe vs. Wade decision on abortion. In the ensuing decades, the nomination process of future justices has turned into an ideological scrimmage between those on the left and the right. Regardless of how the court rules on culture-war issues like abortion and gay marriage, one set of Americans is bound to be upset.
In recent years, some of the court’s damage has been self-inflicted. In the 2000 Bush vs. Gore decision, a conservative majority halted the counting of votes in Florida for reasons that appear to be highly partisan. The Citizens United case that loosened a century-old provision regarding campaign financing appears as the work of tireless activists meddling in settled case law. Both these cases and others are bound to have lowered the public’s view of the court.
Of course, in the nation’s current era of super-charged political divisions, there’s little space for the court to maneuver. Stay tuned for the Supreme Court’s decision on the Affordable Care Act of 2010, which will surely please one set of Americans and anger another set.