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Justices Amy Coney Barrett and Stephen Breyer want to convince you that the Supreme Court isn't political, but experts say 'it's naive to think people will' believe them

Business Insider
Business Insider
 2021-09-16
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US Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center in Kentucky on September 12, 2021. (AP Photo/Timothy D. Easley
  • Justices Amy Coney Barrett and Stephen Breyer have tried to defend the Supreme Court's integrity.
  • "This court is not comprised of a bunch of partisan hacks," Barrett said at the McConnell Center this week.
  • Yet experts said they're ignoring the realities of how politics affects the court and its justices.

While critics blast the Supreme Court as hyperpartisan, Justice Amy Coney Barrett this week attempted to sway public perception, insisting the institution is independent from politics.

"My goal today is to convince you that this court is not comprised of a bunch of partisan hacks," she told attendees at the 30th anniversary of the University of Louisville's McConnell Center, a department founded by Senate Minority Leader Mitch McConnell, the Republican lawmaker who championed Barrett's nomination to the bench and introduced her at Sunday's event.

Barrett's colleague, Justice Stephen Breyer, likewise tried to protect the integrity of the Supreme Court this week.

"A lot of people will strongly disagree with many of the opinions or dissents that you write, but still, internally, you must feel that this is not a political institution," he told The Washington Post on Monday.

The "single most important point that I hope people will take" from my 27 years on the nation's high court "is judges are not junior league politicians," Breyer, 83, added.

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Supreme Court Justice Stephen Breyer. Bill O'Leary/The Washington Post via Getty Images

"It's naive to think people will — it's hard to believe that you can convince people of that," William Lasser, a Clemson University professor focused on the politics of the Supreme Court, told Insider in response to the two justices' comments.

Though the conservative and liberal members of the court sought to defend their roles, they are ignoring what experts claim is the obvious: politics undeniably affects the Supreme Court and its justices.

"If the justices have to defend themselves from being partisan, that's already a problem in and of itself," Lasser added. "The court has always been a political institution for its history."

Public approval of the Supreme Court is at an all-time low

Justices have long tried to uphold confidence in the federal judiciary, often dismissing criticisms that its members are loyal to the Republican or Democratic presidents who appoint them. In one instance in 2018, Chief Justice John Roberts pushed back on then-President Donald Trump labeling a judge who ruled against his policy an "Obama judge."

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement at the time. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

Despite their efforts, public approval of the US' highest court appears to be eroding. Just 37% of Americans — an all-time low — approve of the way Supreme Court is handling its job, according to a Quinnipiac University poll released on Wednesday. A Gallup poll conducted in July also found that public approval in the Supreme Court declined by 9 percentage points compared to the same month in 2020.

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Members of the Supreme Court pose for a group photo on April 23, 2021. Seated from left are Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer, and Sonia Sotomayor. Standing from left are Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett. Erin Schaff/The New York Times via AP, Pool

"Certainly, if you disagree with either of these justices, it's hard to look at Justice Barrett, as a Democrat, and say, 'I believe that she's not acting like a Republican,'" Lasser said. "It's hard to look at Breyer, if you're a Republican, and not see a Democrat."

Lasser took particular issue with Barrett's comment on Sunday that the justices' "judicial philosophies are not the same as political parties."

"It's true that their judicial philosophies are authentic and they believe them very deeply," he said, but "they're underestimating the extent to which these partisan viewpoints influence their judicial philosophies."

Allison Orr Larsen, a law professor at the College of William and Mary, told Insider that it's over-simplistic to call the justices political, but that the justices aren't immune from politics.

"They have views about the way the world works and those views necessarily influence how they decide cases, particularly the high-profile ones. I would not call that partisan behavior, but I would not call it strictly legal," Larsen said in an emailed statement. "There are political beliefs and normative commitments that divide the Justices from one another, and that is undeniable. But judging a case is a different mental act than voting as a legislator or voting with a political party. Certainly the Justices are appointed in part for their normative commitments and those commitments will inevitably influence their votes in close cases, but it is over-simplistic to call that behavior partisan."

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Protesters gather outside the home of Supreme Court Justice Brett Kavanaugh, Monday, Sept. 13, 2021, in Chevy Chase, Md. AP Photo/Jose Luis Magana

'The court is inevitably enmeshed in politics'

There are several other glaring ways in which the Supreme Court is plagued by politics.

To name a few: Republican and Democratic candidates regularly campaign on issues the Supreme Court rules on, the US president selects a Supreme Court nominee that the Senate then confirms them, and Americans frequently take sides in Supreme Court cases based on their political beliefs.

The heated confirmation hearings of Trump nominees Justices Brett Kavanaugh and Barrett highlight how politics have affected the court in recent years, according to Lawrence Baum, a professor emeritus at Ohio State University, whose expertise is the federal judiciary.

"It is very difficult to tell" how much of politics affects a justice's decision, Baum said, but "regardless of how the justices do their job, the court is inevitably enmeshed in politics."

"It's inescapable that the court is linked to a larger political world," he added.

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Senate Minority Leader Mitch McConnell of Kentucky. AP Photo/Andrew Harnik

Trump, McConnell, and the Republican-led Senate faced widespread backlash last fall for rushing to confirm Barrett in the weeks leading up to the 2020 presidential election.

Barrett has largely avoided the public spotlight since, but her comments at the McConnell Center over the weekend have sparked new criticism as an example of the partisanship that she was attempting to quell.

"Many of the Justices – appointed by Presidents of both parties – have started to make more public appearances like this with political actors or groups with political affiliations," Larsen said. "I don't think that choice is wise because of the perception it encourages, but I would not say that makes the Justices partisan or changes how they would decide cases."

But Lasser, the Clemson University professor, pointed out: "Where else could [Barrett] go?"

"She's not gonna go to a very liberal place and give a speech because she's not going to be invited to give a speech there," he said. "These worlds have become, as all our politics has become and as our society has become, increasingly polarized around these very issues that the court has both shaped and responded to."

This report has been updated with additional comments from Professor Larsen.

Comments / 126

Beatrice Chiappardi
09-17

The Supreme Court follows the Constitution and the laws unfortunately our president does not ..neither does the entire Democratic Party. That's the reason Biden wanted all of them to resign. That don't work so he trying to add more judges, so he can put his people in power .Democrats are trying to make it political it is not that right now.

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Donald Colongeli
09-17

The SC still has both parties represented. They represent the constitution, not themselves or either party.

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A user you may know
09-18

We will see when Adolf Biden's forced vaccines hit their table. It's clearly unconstitutional and just very evil trying to force people to inject. If they don't vote 9-0 against Biden then clearly there is a issue inside the highest house of judges

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