On April 23, 2021, members of the Supreme Court pose together for a group photograph at the Supreme Court Building. Justice Samuel Alito and Justice Clarence Thomas are seated from left. Chief Justice John Roberts and Justice Stephen Breyer are in the back. Justice Sonia Sotomayor is standing from left. Justice Brett Kavanaugh and Justice Elena Kagan are in the front. Justice Neil Gorsuch and Justice Amy Coney Barrett are from the left. Erin Schaff/The New York Times via AP. Pool
The Supreme Court's reputation is deteriorating.
The impartiality of this Court is at risk after decisions such as the Texas abortion case.
Hyperpartisanship at the Court and around it is to blame.
Michael Gordon is a longtime Democratic strategist, a former spokesman for the Justice Department, and the principal for the strategic-communications firm Group Gordon.
This column is an opinion piece. These thoughts are solely the author's.
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Supreme Court Justice Amy Coney Barrett acknowledged that the Supreme Court is in decline as an institution.
The newest justice made a speech earlier this month in which she lamented the Court's partisan nature and warned that her fellow justices should be "hyper vigilant" to avoid personal biases influencing their decisions. She must be able to see something that we do not.
These comments may not seem surprising. Barrett was confirmed to Court in hyper-partisan process. He also gave the speech mentioned at the event celebrating Sen. The architect of the rightward turn in the judiciary system's direction, Minority Leader Mitch McConnell. The comments struck a chord despite the hypocrisy or maybe because of it.
The credibility of the Court, in an age where Republicans are challenging valid election results, is the next hammer to be thrown at our democracy. It is the last hope for nonpartisan decision-making.
The Court is now losing public support because the facade of impartiality is slipping, and it is the fault of hyperpartisanship at the Court and around the Court.
Partisan justice
Even a few years ago the Supreme Court was not as partisan as it now is. When McConnell and Senate Republicans refused the seat of President Obama's last nominee, Attorney General Merrick Garland, support began to erode.
Recent decisions have been, to use a more apt term, bipartisan. Justice Gorsuch joined four liberal justices in supporting Native American land claims for Oklahoma. The Supreme Court affirmed the Affordable Care Act in a 7-2 decision.
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Just a few months back, Justices Kavanaugh & Roberts helped to keep the eviction moratorium in effect in a 5-4 ruling. However, this decision was overturned in a separate case a few months later. Roberts, who is believed to be trying to keep the court nonpartisan, often sided with liberal justices.
This facade of bipartisanship appears to be disappearing on important issues for many Americans. First, the Supreme Court overturned the eviction moratorium that they had just upheld. This has thrown millions of Americans in uncertainty.
The death knell was sounded a few weeks later when the Supreme Court blatantly indicated its willingness to overturn Roe vs. Wade, allowing a Texas strict anti-abortion law into effect. Roberts voted for the liberals in the decision. However, the other Republican-appointed judges overturned almost 50 years worth of legal precedent.
It is safe to say that we will see more of these decisions in the future, given the 6-3 Republican majority. Roberts can be impartial as much or as little as he likes, but the conservatives still have a five-justice majority and can rule on any case they want.
Votes and not words
Over the past decades, Republicans have focused on the court as a strategy. They have turned to court to legitimize voter suppression and gut the Voting rights Act. Justices Barrett and Roberts have supported them.
Both justices have a right to be concerned about the legitimacy and independence of the Supreme Court. They need to recognize that they are part of the legitimacy crisis.
Democrats have offered many solutions to this problem. They suggested expanding the court and adding term limits. These ideas are now dead, but once impossible national changes resulting from the Court's decisions remain.
This is only the beginning of Texas's abortion decision. Roe could be completely overturned later in the year. Even if Democrats pass many of the landmark bills that they are currently discussing, the conservative court could simply strike them down and declare them "unconstitutional" under any pretense they choose.
Barrett might join Roberts in trying to strike a more bipartisan tone. She has the power to make a difference if she is truly concerned about how the Court and her colleagues view matters. She must follow Roberts' lead and cross party lines to support him.
It is her votes that matter, not her words. I don't hold my breath.
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