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Supreme Court watchers say politicization of court has eroded trust

SCOTT DETROW, HOST:

The Supreme Court's term ended with a bang. The court struck down President Biden's student debt relief program, sided with a Colorado website designer who wanted to refuse business to a same-sex couple and blew up affirmative action in college admissions. All three rulings were a 6-to-3 split - all of the court's Republican-nominated justices voting against the three justices who were put forward by Democratic presidents.

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PRESIDENT JOE BIDEN: This is not normal.

DETROW: That's President Biden speaking with reporters after the affirmative action ruling.

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BIDEN: This has done more to unravel basic rights and basic decisions than any court in recent history.

DETROW: The Supreme Court is the highest court in the land. Once decisions are passed down, there's not much that can be done to change them. Justices serve for life. Some court watchers feel that the rulings of the conservative majority have strayed too far into partisan politics. And with recent revelations about unreported gifts given to justices Clarence Thomas and Samuel Alito, the country may be faced with a big question - just how far has trust in the court eroded? Like last year's Dobbs ruling, which ended the constitutional right to abortion access, the end-of-term decisions will reshape the landscape of American law and have immediate ramifications on people's lives. And the court has also faced a growing ethics scandal that raises big questions about who, if anyone, the justices have to answer to.

I spoke with two Supreme Court experts to help us understand just what is going on with the court - journalist Dahlia Lithwick and law professor Leah Litman from the University of Michigan. I started with Dahlia Lithwick, who covers the Supreme Court for Slate and has a podcast about legal issues called "Amicus." I asked her what she made of this last big series of rulings.

DAHLIA LITHWICK: I think, in some sense, this was the shoe that folks were waiting to have drop. We had seen a bunch of cases in the last couple of weeks that certainly signaled that maybe that sort of 6-3 juggernaut that we remembered from last term was in abeyance or was at least moderating or that, you know, Justices Kavanaugh and Barrett and the chief justice could be persuaded to kind of go small. And there was no going small. On these last couple of days of the term, we saw big, big, big decisions and very, very profound reshaping of the landscape. And I think I would probably say also, you know, functionally, the overturn of another case last year - Dobbs overturned Roe v. Wade - I think we can say that the affirmative action cases on Thursday fundamentally ended the regime of affirmative action cases that had stood since the Bakke case in 1978.

DETROW: Taking these last big decisions and the rulings together, do you see any common threads or themes of how the court's majority sees America and sees the rule of law at this point in time?

LITHWICK: I think that one thing we can say is that there's a traditional kind of conservative legal movement shaping of the world that says, you know, we don't take cases if there isn't standing. We don't take cases if there isn't, you know, a cognizable harm to be remedied. We don't take cases that haven't - that nothing's happened yet. In case after case, what we've seen, I think, is that some of those rules that we come to rely on - you know, 303 Creative, this Colorado web designer who doesn't want to provide services to same-sex couples - there's no harm or injury in that case. The old-timey conservative legal movement would have been at the front of the line, saying, you can't hear a case when no harm has been done. So I think one of the big themes - and this seems kind of technical and jargon-laden - but the idea that the court does as little as possible and waits for cases to be fully ripe before they take them, I think, is gone. I think we're seeing a majority that is willing to kind of reach way up on its tippy toes and take cases that are not necessarily before the court properly.

I think as to the sort of bigger question you're asking, it is clear that this is a six-justice supermajority that is deeply anxious about race. And we see that in the affirmative action case that is almost upending the directive of the 14th Amendment and the Reconstruction Amendments that were clearly designed to remediate racial harm and instead imposing this idea that if anyone takes account of race for anything, they are in violation of the Reconstruction Amendments.

DETROW: I want to go back to the idea of the shoe dropping that you mentioned at the beginning of the conversation because you and I had this conversation earlier in the week, before this final series of rulings. And we talked a lot about thinking that maybe Chief Justice Roberts had regained some control of the court, that he was convincing just enough of his fellow conservatives to go along with more moderate and incremental rulings, and he maybe was doing that because of the deep blows the court's public opinion and trust levels have taken in recent years. Do you think there's still something to that on some level, given the way that the orders were - the rulings were released and given the scope of some of the earlier decisions earlier this month, or do you think the final days of the court and these big decisions on the 6-3 lines on affirmative action, on gay rights, on student debt obliterates that view?

LITHWICK: All of these cases are a big, big deal, but I do think that what we saw in the last couple of weeks, which is the chief justice and Justice Kavanaugh and Justice Barrett at least somewhat moderating the intensity that we saw last year to - you know, we were calling it big swings when we spoke. I think that that's clearly - on these issues, the chief justice is right there with Justice Thomas and Justice Alito in some sense by that metric. And let's recall, he kept these opinions for himself, both the student loan forgiveness and the affirmative action cases. He wrote the opinions himself. So, yes, I think it's fair to say he's back in control of his court. But I think that instead of getting, you know, three liberals and Justice Kavanaugh to agree with him, he got five conservatives to agree with him.

DETROW: That was Dahlia Lithwick. She covers the Supreme Court for Slate and has a podcast about legal issues called "Amicus."

The judge's rulings are not the only things that have been controversial this year. A series of reports from ProPublica has alleged that both Justice Samuel Alito and Justice Clarence Thomas received lavish gifts from major Republican donors and didn't report them. They've raised a big question - other than investigations by news organizations, who is holding the justices accountable? And also, what do the justices' responses tell us about the polarization of the court? Leah Litman is a law professor at the University of Michigan and co-host of "Strict Scrutiny," a podcast about the Supreme Court and legal culture. We talked about Justice Alito's decision to publish an angry op-ed in The Wall Street Journal the night before the story dropped, accusing the news organization of misleading its readers. I asked her if she was surprised by that.

LEAH LITMAN: I actually think it was pretty in character for how he has responded to any criticism of him or the court in the past. This is a justice who, during his keynote speeches at the Federalist Society or at the Heritage Foundation, has called out blog posts written by law professors that criticize the direction of the conservative court. So he takes any criticism very poorly and overreacts. So, you know, once ProPublica was about to expose how he has accepted free personal jet trips and other largesse from billionaires with business before the court, it's not that surprising he would overreact to that as well. It's just he did so in a more high-profile, visible setting this time.

DETROW: Not just Alito - right? - then - we have seen that when justices are called out or held accountable, they do not exactly take it well, and they are very resistant to the idea that they're able to be influenced and that they should be held accountable. Here's Justice Thomas speaking at Notre Dame in 2021.

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CLARENCE THOMAS: I think the media makes it sound as though you are just always going right to your personal preference. So they think you've become like a politician. You're going to jeopardize any faith in the legal institutions.

DETROW: So do you think they're just grappling with the fact that this mystique that the court has been held in is all but gone at this point?

LITMAN: I think they are definitely responding to that. Justice Barrett was also going out on a speaking tour last year, together with other justices, in which, you know, she basically said she was there to convince people that the court was not just a group of partisan hacks, because if that's how the court is viewed, then their authority is going to be limited and checked by people, by democratic institutions, who say, why are you the ones that get to decide whether, for example, we can regulate very dangerous firearms, whether we can address climate change and whether we can respond to the host of all of the other current-day problems that, you know, we are struggling with?

DETROW: Have you seen this more combative and political approach and more defensive approach making its way into the rulings or arguments or any other day-to-day business of the court?

LITMAN: I think that they have. So, for example, Justice Alito's dissent from the court's order in the mifepristone medication abortion case basically chastised the federal government for failing to say they would agree to be bound by an unlawful order. We've also seen the justices kind of criticize, you know, people too strongly criticizing the court's decisions and basically asking the solicitor general of the United States, who represents the federal government, why aren't you accepting, you know, this recent decision that we made? Why are you failing to show that sufficient respect? So I think we have seen this self-consciousness from the justices and this desire to basically shore up their own power in their statements from the bench as well as in their writings.

DETROW: But the ethics side of it, did these disclosures, did these reports surprise you?

LITMAN: No, they did not because, you know, back then it was still reported that, for example, Justice Scalia was going off on hunting trips, you know, with individuals who are active in Republican causes. And even at the time, you know, it was clear that the Federalist Society was having all of these network events that were kind of designed to create an alternative infrastructure to bolster the Republican-leaning justices and reward them, you know, when they basically stayed true to the conservative legal movement's mission. So it's just people weren't paying as much attention to the court. And, you know, journalists who were covering the court treated the court as different from politics and somehow above it and so didn't really talk about or investigate or question some of the justices' practices of hobnobbing with political mega-donors.

DETROW: That was Leah Litman, a law professor at the University of Michigan, co-host of "Strict Scrutiny," a podcast about the Supreme Court and legal culture. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

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