There are two Washingtons.
There’s the one that populates elementary school textbooks, in which the three branches of government assiduously and sincerely push against one another for power, eyes fixed on the best possible outcome for the American republic.
Then there’s the one that shows up in the newspapers, the one in which the attention of elected officials is distracted by fundraising goals and 24-hour news cycles and ambition — and those are the least nefarious options. “Mr. Smith Goes to Washington” is a heartwarming film, but its message is that overcoming corruption is the exception in our nation’s capital.
For years, the Supreme Court was fairly effective at portraying itself as residing in that first Washington, the idealistic one. Its members, after all, were seated for life, indifferent to the vagaries of public opinion and immune to the need to raise campaign contributions. It heard arguments from lawyers, evaluated those arguments and decided on an opinion.
This is the perception that Chief Justice John G. Roberts Jr. has been diligent about defending: that his court retains its impartiality. Even as the increasingly robust conservative majority expanded its targets, Roberts insisted that the court was acting solely within its traditional, rigid — conservative, one might say — boundaries. But that argument has become increasingly difficult to defend, and Americans have become increasingly likely to reject it.
Over the weekend, the New York Times revealed that the leak in May of a draft opinion in Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade, was not the first such leak of a result. In 2014, a couple dined with Justice Samuel Alito, the paper reported, at which they were apparently told that the justice would be writing an opinion in Burwell v. Hobby Lobby Stores favoring Hobby Lobby. This was conveyed to a conservative activist named Rob Schenck, and was reinforced by contemporaneous emails. Alito denied that he or his wife disclosed the opinion in advance.
Alito, also the author of the leaked Dobbs opinion, has been nearly as fervent as Roberts in defending the impartiality of the court. He’s attacked members of the media who are critical of how the court operates and haughtily objected to questions about the court’s integrity and politicization. He is also the second-most conservative member of the court.
The most conservative is Justice Clarence Thomas, who has been at the center of a different swirl of questions. His wife, Ginni Thomas, was involved in efforts to overturn the 2020 election, including attending the rally outside the White House on Jan. 6, 2021. Thomas was also the sole vote in support of protecting records from Trump’s White House from scrutiny by the House select committee investigating the riot at the U.S. Capitol on that day.
The indirect connection to activism revealed by Ginni Thomas’s engagement echoes what is perhaps the more important part of the Times report on Alito’s activity in 2014. The couple with whom he was dining were donors recruited by Schenck specifically to engage Supreme Court justices in social activity.
He “recruited wealthy donors like Mrs. Wright and her husband, Donald” — the couple at that dinner — “encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs,” the Times reported. “He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions.”
The justices described as “amenable” to the outreach? Alito, Thomas and the late Antonin Scalia.
Again, this is not the perception of the Supreme Court that Roberts would like the public to have. None of this is to suggest that the intertwining of activists and justices is new, since it isn’t. It is novel, however, for one justice to be at the center of two reported leaks, for the spouse of another justice to have worked to reject the results of a presidential election and, of course, for this to overlap with those justices being part of a majority so actively reshaping precedent and bolstering one ideological domain.
The issue is not that the court is conservative. The issue is that the court appears to have become enmeshed in the politics above which it claims to sit — turning the lack of accountability that was intended to preserve the court’s objectivity into a defensive moat allowing justices to behave as they see fit.
Earlier this year, Gallup reported that public confidence in the court had reached a new low in a half-century of measurement. This was largely a function of Democrats viewing the court with new skepticism, given the leak of the Dobbs decision and the court’s measurable rightward shift.
What’s interesting about Gallup’s data, though, is that perceptions of the court have generally tracked with confidence in the presidency. The percentage of Americans saying they had a “great deal” or “quite a lot” of confidence in each was in the 40s for much of the 1980s and 1990s. By the second term of George W. Bush’s administration, both had fallen into the 30s. In 2022, each had dropped into the 20s.
Congress, meanwhile, has been in the teens for more than a decade.
But while perceptions of the court and the White House have moved in tandem, the triggers for the movement vary. Views of the presidency are heavily influenced by partisanship, with members of an incumbent president’s party having a lot of confidence in that presidency and members of the out party having very little. That results in a wide partisan gap.
There’s far less of a gap in views of the court, as is the case with Congress. Republicans and Democrats both generally dislike Congress, in part because there are leaders of the opposition party for each to find objectionable. But views of the court have been much less pressured by partisanship — until 2022. The gap between the parties is more than 25 points at this stage, with Republicans much more positive than Democrats about the court.
It is certainly possible that perceptions of the court will rebound and be colored less robustly by partisanship. But, unlike the presidency or even Congress, there is no election in which the court might be reshaped. Democratic elected officials have called for the court to implement rules on ethics and behavior that, thanks in part to schoolbook-Washington perceptions of the court, don’t exist to any robust extent.
That, of course, wouldn’t change frustrations about how the court decides — which is the central reason for Democratic skepticism. Conservative activists like Schenck have gotten what they wanted from the court. So did Donald Trump, seeking to deliver for his conservative base. There was a specific, energetic effort to build a court that would release opinions favorable to the political right. That court has arrived — and is cemented in place until justices retire or die.
And that, by itself, is why the court’s struggling effort to present itself as being above the fray will not work. The forces that shape the court pushed to make one that would not be above the fray but instead be responsive to the cultural moment. By all appearances, they were successful.