Public Perception of Supreme Court’s Independence at Risk
The foundation of the United States since that unanimous declaration to the world on July 4, 1776, has been independence.
Independence and its accompanying freedom is infused throughout our system of government and our society. The courts, for one, are supposed to serve as an independent check on power. So, too, is the press.
Both of those venerable institutions have come under assault in the current political environment.
Trust has declined that both the courts and the press are free from undue political pressure. Increasingly, both institutions are seen as pawns of those welding power – whether that’s a judge viewed as acting through the lens of the political party of the president who appointed them or a news outlet viewed as the mouthpiece of whichever billionaire or corporation signs its journalists’ meager paychecks.
Both the courts and the press play key roles in our republic, and both have politics at their root.
Many newspapers were established by political parties, and it wasn’t until the modern era that objectivity became the norm – although many outlets still are proudly political, even if they claim that’s just on their opinion page or during their primetime lineup. Judges are appointed by politicians or, in some jurisdictions, run for election.
Both institutions, too, depend upon their credibility with the public, and that’s increasingly under threat.
The presidency of Donald Trump has shown a spotlight on that issue for the press, as news outlets have struggled with how to deal with a president who repeatedly makes demonstratively untrue statements. Some outlets have championed the resistance to Trump, while others have backed the president. Many try to strike a balance, telling stories of their community or the nation while still emphasizing above all what’s true and untrue.
The death of Ruth Bader Ginsburg has placed the Supreme Court, and the judiciary writ large as an extension, firmly in that same spotlight – even if it’s a situation not of the court’s own choosing. If Senate Republicans opt to lock in a victory by approving a new justice and Joe Biden ultimately prevails in November, they’ll leave Democrats with few good options.
There’s already been open talk about court packing or other ways that Democrats could seek to dampen the influence of any particular justice.
Of course, if Senate Republicans don’t back Trump’s pick, and Biden ultimately makes the pick, the conservative moment will feel betrayed – as its chance to shift the court would slip by, perhaps for another generation.
Neither outcome helps bolster the court’s reputation, and both risk the Supreme Court becoming no different than the other dysfunctional institutions in Washington – except with lifetime terms and less transparency.
It’s doubtful the national press will help any either, as it’s difficult for anyone to resist a narrative that has clear winners and losers.
Then there’s the matter of the election itself.
Trump has actively sowed the seeds of doubt in the nation’s electoral process, including absentee ballots and allegations of massive voter fraud. It was once shocking to hear Trump call for his political rival to be locked up. Now the sitting president has suggested that Biden might be disqualified via an executive order.
The realities of the pandemic mean that, absent a landslide, it’s likely we won’t know who wins the presidential contest for days if not weeks after Election Day. In that intervening time, how the country will handle uncertainty is hard to predict. But it would be surprising if there wasn’t litigation, even if it doesn’t rise to the level of Bush v. Gore in being determinative of the election’s outcome.
So where does that leave the Supreme Court?
In Bush v. Gore, the court essentially decided that having a presidential election outcome was more important than the actual tallying of actual votes. After all, electors chosen by the states tell Congress who to make president, not the voters directly.
Imagine how a decision like that would go over in 2020 – particularly the prospect of a Democrat once again winning the popular vote but losing the election.
The Supreme Court would be left to reckon with the precedent established in Bush v. Gore.
If they backed Trump, they’d be viewed as supporting the person who put them in power. If they backed Biden, Trump would certainly lash out. Either way, one side would have reason to believe the election was stolen, and any appeal to respect judicial independence would be tainted.
Might that still be the case if an eight-member court was asked to weigh in on the 2020 election? Absolutely, but the credibility of the court – which was viewed in the last term as handing a mix of wins to conservatives and liberals – wouldn’t face the same challenge. The unanimous or near-unanimous ruling of the existing court would be likely to be met with acceptance.
The press has a role to play in all this, too. We’ve got to remain level-headed and keep our personal opinions in check. Ginsburg’s death adds to the uncertainty of the world right now, but her words offer guidance.
“My mother told me to be a lady. And for her, that meant be your own person, be independent,” she said.
No matter what happens, guarding our independence – and those of our democratic institutions – is key.
Scott Stewart is the managing editor of The Daily Record. Contact him at scott@omahadailyrecord.com.
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