On Point: The Politics of the Supreme Court

Support and Sponsorship Information

  • Plymouth Rock Assurance: A local auto insurance provider offering services via phone, mobile app, text, local agents, or online.

  • Takeda: Invests in STEM education, mentoring, and career pathways to empower future leaders and innovators in Massachusetts.

  • Revision Energy: A 100%100\% employee-owned solar installer focused on all-electric homes to mitigate the climate crisis.

  • Nature is the Solution: A podcast from The Nature Conservancy discussing renewable energy siting to support nature and climate goals.

  • WBUR Festival Sponsors: Includes Takeda, Boston Symphony Orchestra, Woods Hole Oceanographic Institution, The Huntington, Museum of Fine Arts Boston, Senior Planet by AARP, MASS MoCA, and Zimmins.

Judicial Philosophy and the Umpire Analogy

  • Chief Justice John Roberts (2005 Confirmation Hearing): Defined the role of a judge using a baseball metaphor.     * Metaphor: Judges are like umpires; they do not make the rules, they apply them.     * Role: Critical but limited. No one attends a ballgame to see the umpire.     * Humility: Judges must recognize they operate within a system of precedent shaped by others striving to live up to the judicial oath.

  • Analogy Critique: Magna Chakrabarty notes that the analogy fails regarding the intense public attention paid to the United States Supreme Court.

Public Perception and Supreme Court Approval Ratings

  • Gallup Poll Data (September 2021):     * Approval Rating: Plummeted to 40%40\%, the lowest score since Gallup began polling the question in the year 20002000.     * Annual Decline: A drop of almost 2020 points within 11 year.     * Ideology: Approximately 60%60\% of respondents believe the court is "too ideological."     * Bipartisan Disapproval: Disapproval is shared among self-identified liberals and conservatives.

Public Relations Blitz: Statements from the Justices

  • Justice Stephen Breyer (PBS NewsHour): Stated that federal judges do not serve the Democrats, Republicans, or the party of the appointing president.

  • Justice Amy Coney Barrett (University of Louisville, Sept 12): Expressed a goal to convince the public that the court is not comprised of "a bunch of partisan hacks."

  • Justice Samuel Alito (Notre Dame, Sept 30): Criticized the media for attempting to damage the court’s independence by portraying it as captured by a "dangerous cabal" using "sneaky and improper methods."

  • Chief Justice John Roberts (New York, Sept 25): Argued that despite a polarized environment, the court does not function in a partisan or ideological manner.

  • Justice Elena Kagan (2018): Asserted that the court’s legitimacy depends on the public believing decision-making has integrity different from the political branches.

  • Justice Clarence Thomas (Notre Dame, Sept 16): Argued the media portrays judges as politicians following personal preferences (e.g., positions on abortion), which jeopardizes faith in legal institutions.     * Warning: Thomas noted that judges with lifetime appointments may become "the most dangerous" branch if they succumb to the temptation of legislating from the bench.

The "Scheme" and Dark Money Influence

  • Senator Sheldon Whitehouse's Thesis: Outlined a "scheme" involving the Federalist Society and the Judicial Crisis Network.     * Funding: Approximately 250,000,000250,000,000 in dark money used to reshape the American judiciary.     * Process: Dark money donors orchestrate appointments, advertise for nominees, and send amicus briefs to the court.     * Statistical Indictment: From 20052005 through February 20202020, the Roberts Court issued 8585 to 44 partisan decisions (or 8080 cases decided 55 to 44) benefiting Republican donor interests, including:         * Allowing unlimited corporate spending in elections.         * Hobbling pollution regulations.         * Enabling attacks on minority voting rights.         * Curtailing rights of organized labor.         * Limiting rights in civil cases.

Historical Context of Political Appointments

  • Teddy Roosevelt and Oliver Wendell Holmes: Justice Breyer recounted that Roosevelt appointed Holmes expecting a secure vote on antitrust issues.

  • Outcome: Within 44 months, Holmes voted against Roosevelt's view.

  • Reaction: Roosevelt was furious, famously stating he could appoint a judge with "more backbone carved out of a banana."

State Judicial Models and Popular Selection

  • Miriam Seifter (University of Wisconsin): Discussed the State Supreme Courts Project.

  • Partisan Races: Some state judges run with a "D" or "R" designation, influenced by popular majorities.

  • Downsides: Judicial elections in criminal cases can lead to harsher sentencing as judges face voters and the influence of "big money."

  • Upsides: Elected judges serve as a popular check on extreme actions by gerrymandered legislatures or state officials.

  • 2020 Election Verification: Over 5050 cases alleging voter fraud were rejected by both federal and state-level judges from both parties, demonstrating a tempering of extreme partisanship.

Debate on Law and Ideology: Kennedy vs. Cole

  • Randall Kennedy's Perspective:     * Realism: The "public relations blitz" by justices is self-discrediting. Justices are politicians in how they act and are concerned primarily with their authority.     * Best and Brightest: Contests the idea that the current justices are the most learned or capable jurists; they earn respect based on their work, not just their appointment.     * Malleability of Law: Law is "capacious" and "malleable"; judges justify what they want to do by referencing "the law."

  • David Cole's Perspective:     * The Ideal: While judges have worldviews, the ideal is to decide cases on legal principles rather than partisan gut judgments.     * Counter-Examples: Points to decisions where conservative majorities ruled against their perceived party interests:         * DACA: Roberts joined liberals to strike down the elimination of DACA (55 to 44).         * Title VII: Gorsuch and Roberts extended protections to gay and transgender individuals (66 to 33).         * Trump Subpoenas: Court ruled against Trump (77 to 22).         * Affordable Care Act: Protection of the act reached via consensus.         * Mahanoy Area School District v. B.L. (Fuck Cheer Case): An 88 to 11 victory for student speech.     * Stare Decisis: The principle of "let the decision stand" constrains the court from overturning major precedents like Roe v. Wade simply because they have the votes.

Questions & Discussion

  • Audience Question (Diane Fitzgerald): "Lady justice wears a blindfold. It seems that now the supreme court justices do not."

  • Audience Comment (Guy): "Congress can pass laws and take the heat off the courts, but few politicians have courage to do that… they are paid off by special interests."

  • Question (Magna Chakrabarty): "Doth the justices protest too much? What if the supreme court is… slogging through the political mud with the rest of us?"

  • Question (Jack Beatty to David Cole): "Isn't that bias?" (referring to the 8585 to 44 partisan decisions cited by Sheldon Whitehouse).     * David Cole's Response: Those statistics are one-sided; many 55 to 44 decisions recognized marriage equality or struck down the death penalty for juveniles under a Republican majority court.

  • Question (Chuck Grassley to Neil Gorsuch): Would you have trouble ruling against the president who appointed you?     * Neil Gorsuch's Response: "That's a softball… I have no difficulty ruling against or for any party… there's no such thing as a Republican judge or a Democratic judge."

Closing Segment: Agrivoltaics Preview

  • Agrivoltaic Solar Array: A dual-use land system for solar panels and agriculture.

  • Hyperion: Started in 20112011 with a "food first, then energy" philosophy.

  • Goals: Guarantees farmland stays in production for 2020 years, supports conservation, and meets energy generation needs in the Commonwealth.