There are important cases among the 40 that the Supreme Court has agreed to hear in its new term beginning on Monday, but no blockbusters: nothing like last term’s ruling in the Donald Trump immunity case, or the affirmative action case from 2023, or the abortion and guns rulings from 2022.
The real issue in the new term is about the court itself — that is, the Supreme Court’s increasingly eroding credibility, and what, if anything, the justices are going to do about it.
We have both been critical of the current justices for how their behavior, both on and off the bench, has undermined public faith in the court. Too many of its most important rulings can be chalked up to nothing more than the fact that Republican presidents appointed six of the justices, and Democrats appointed only three. And then there are the alarming ethical lapses of two of the six justices in the majority — lapses that have close connections to their relationships with right-wing megadonors.
The urgent question in this term and those to come is whether the court as a whole, and at least some of the individual justices, has stopped worrying about the impact of its behavior on public confidence in the institution.
Consider recent reporting in The New York Times about how Chief Justice John Roberts approached the two major Trump cases the court decided last term, on immunity and disqualification. Offered repeated opportunities to rise above the partisan fray, the chief justice instead led the court straight into the muck. Justice Amy Coney Barrett’s concurring opinions (as well as the other separate opinions) in both cases were clear: The majority went further than it needed to go to resolve the disputes. The Times’s reporting, based on leaked confidential memos (itself an extraordinary breach of court protocol), suggests that the majority did this knowing that the rulings would be seen as sweeping victories for Mr. Trump — if not with the specific intent to do just that.
Plenty has already been written about the short-term problems with both rulings — including what they mean for the ability of states to enforce the insurrection ban in Section 3 of the 14th Amendment and for the ability of prosecutors to continue the pending cases against Mr. Trump. But the long-term implications are just as ominous: A court that loses its institutional credibility is a court that will be powerless when it matters most.
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