by A generation after the Supreme Court intervened in a disputed presidential election, the United States is experiencing a growing sense of déjà vu. Twenty-three years ago, a slim majority of justices stopped a recount in Florida, effectively handing the presidency to George W. Bush.
The spectrum of Bush vs. Gore, the case that stands as a marker of how No to resolve hot-button political disputes, looms large as the Supreme Court is asked to address controversies with profound implications for the fate of the Republican front-runner in 2024.
Judges are feeling the pressure almost a year before an election and not in the tense weeks after the vote. The questions today are more complex (there are at least three separate issues, not one) and all revolve around the Capitol insurrection that occurred in front of the Supreme Court building in 2021.
The court on Friday rejected special counsel Jack Smith’s request for an expedited review of Donald Trump’s claim that former presidents have “absolute immunity” from criminal prosecution for their conduct while in office. But that critical question will almost certainly return to the Supreme Court soon: The federal appeals court in D.C. will hear the case on Jan. 9 and will likely rule soon after.
The court agreed to hear a case that asks whether the Jan. 6 rioters can be charged with obstructing an official proceeding, another key part of Smith’s Jan. 6 case against Trump. And most dramatically, the former president will surely ask the justices to overturn a ruling by the Colorado Supreme Court that, if confirmed, could pave the way for an untold number of states to remove his name from the ballot.
For a court that is supposed to sit away from politics, not astride it, that’s a lot for the Supreme Court to handle. And this comes at a difficult time for the court. In August 2000, on the eve of Bush vs. Gore, 62 percent of Americans approved of how the Supreme Court was behaving. Now, recent polls show that almost that portion (58 percent) disapproves of the institution, a figure that is close to historical levels. minima for the court.
However, the multiplicity of cases gives justices the opportunity to avoid becoming even more trapped by keeping an eye on how potential decisions – collectively – will shape the political landscape. The point is not that addressing the underlying legal issues “correctly” is irrelevant. But when the stakes are so high and the legal issues are novel, judges have a duty to hand down decisions that resonate across the political spectrum, or at least avoid inciting violence in the streets. That is not subverting the rule of law; He is preserving it.
Extraordinary times call for a court that embraces the art of judicial statecraft.
The trap the court finds itself in is largely a function of its own behavior, both on and off the bench. The 6-3 conservative supermajority has radically expanded the right to bear arms, circumscribed the Environmental Protection Agency’s ability to protect the environment, virtually gutted race-based affirmative action, punched holes in the wall between to the State Church and, most notably, has eliminated the constitutional right to abortion. The past year also saw increasing public scrutiny of judges’ apparent ethical lapses, sunlight that pushed the judges to adopt their first code of ethics.
A universe in which the court somehow splits the difference (for example, by keeping Trump on the ballot while refusing to endorse (if not affirmatively repudiate) his conduct and disparaging his actual claim to full immunity) could go a long way. to reduce the temperature of the next electoral cycle. Such an outcome could also help restore at least some of the court’s credibility.
We understand that trying too hard to project a nonpartisan image carries risks. Recent reporting on the twists and turns of how the conservative majority engineered the end of Roe v. Wade show how curatorial decisions can make judges appear overly clever, if not downright deceitful. Delay granting review in Dobbs v. Jackson Women’s Health Organization, in which some of the conservative justices apparently knew they had the votes to overturn Roe, created a false impression that the court was wrestling with the issue, when the reality was anything but. In fact, Dobbs’ experience and its aftermath might have led some justices to sour on the idea of judicial statecraft, especially if their internal deliberations end up leaking to the press. No jurist wants to be seen as a cunning manipulator of public opinion.
And yet, some of the court’s most important rulings throughout its history have represented precisely the kind of constitutional high politics we believe is needed now. The court’s recognition of its power to strike down laws of Congress in Marbury vs. Madison It came in a context in which the direct effect of the ruling was to rein in the court and at the same time slap the Jefferson administration on the wrist.
Their concerted effort to produce unanimous opinions in some of the landmark civil rights cases of the 1950s and 1960s reflected the view that speaking with one voice was more important than the legal nuances of what was said. (This is, perhaps, why no judge publicly disagreed with Friday’s decision not to fast-track the immunity issue.)
The court’s historic rejection of President Richard Nixon’s claim of executive privilege in the Watergate tapes case, which helped directly precipitate Nixon’s resignation, came in a unanimous opinion written by Nixon’s hand-picked chief justice .
This is also the best way to understand Chief Justice John Roberts’ much-maligned 2012 vote in the first serious challenge to the Affordable Care Act: upholding the individual mandate as a tax and rejecting it as a valid regulation of the interstate commerce.
What those (and other) rulings have in common is a sense, across the Supreme Court, that the country would be better off with a court that took the appropriate measure of how its rulings would be received beyond the details of the legal analysis it provided. the magistrates provided. .
The court failed that test in Bush v. Gore: It handed down a ruling widely perceived as Republican-appointed judges installing a Republican president through a forced (and strangely secretive) reading of the Equal Protection Clause and that contributed to precipitate the decline in public opinion that figures so prominently in these cases.
As the Jan. 6 cases put the justices right in the middle of the 2024 elections, the question is whether they will understand the imperative of not allowing history to repeat itself.
Ultimately, these contemporary disputes may not provide a perfect opportunity for the Supreme Court to right that wrong. But if one thing is certain, it is that neither the court nor the country can afford another ruling that alters the elections and adopts such obvious partisan sides.
Steven V. Mazie (@stevenmazie) is the author of “American Justice 2015: The Dramatic Tenth Term of the Roberts Court” and is The Economist’s Supreme Court correspondent. Stephen I. Vladeck (@steve_vladeck), professor at the University of Texas School of Law, writes the One first weekly newsletter of the Supreme Court and is the author of “The shadow file: How the Supreme Court uses stealth rulings to accumulate power and undermine the Republic.”
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