Left and right agree on one thing: The justice system is corrupted by bias

Former House Speaker Nancy Pelosi the other day was asked a question that in an earlier time would have invited civics-class banalities about a nation of laws and the wisdom of the founding fathers.

“Do you have confidence in the Supreme Court?” asked CNN’s Anderson Cooper.

“No,” responded Pelosi. “I think they have gone rogue. It’s most unfortunate.”

Her comment came a few weeks after a successor, Speaker Mike Johnson, similarly found occasion to expound on the integrity of the judicial system.

“Today is a shameful day in American history,” the speaker declared, following Donald Trump’s felony convictions in New York for falsifying records. “This was a purely political exercise, not a legal one.”

Monday marks the final day of the Supreme Court’s term, with a historic ruling on whether Trump is immune from prosecution for attempting to overturn the 2020 election.

It’s an apt moment to note a development that has happened in such a steady progression that it can be easy to miss how consequential it is in historical perspective. The country’s left and right flanks — endlessly divided on nearly every big question in national life — have arrived at a striking convergence: Both ends of the political spectrum believe the American justice system is simply not on the level.

Partisan combatants, of course, disagree on the details. Different cases leave each side aggrieved. But the loudness and ideological slant of the arguments tends to obscure a shared belief. The notion that the nation’s legal system, from the Supreme Court down, is hopelessly compromised by bias and scantily clad partisan agendas is now a foundational assumption across wide swaths of both the conservative and progressive movements.

This is not the same as believing that courts are inevitably infused with a measure of politics. When in American history has that not been true? At multiple junctures over the past generation — from Bush v. Gore to the overturning of Roe v. Wade — to not believe that would have been downright naïve.

A phenomenon that has reached an apogee in 2024, however, is new. The ever-more aggressive declarations of judicial illegitimacy differ from the political complaints of the past not just in degree, but also in kind. And they are putting American politics and law in untrodden territory.

The Pelosi and Johnson statements put the new reality in sharp relief.

For one, their language isn’t especially flamboyant by prevailing standards. Not long algo, the casual assertion of judicial illegitimacy would have been shocking from a former and current speaker. These days, the argument that the justice system is so distorted by politics that in fundamental ways it cannot and should not be trusted reflects mainstream thinking in their parties.

It would have been far more notable if Johnson had said that he was disappointed, but that a jury of Trump’s fellow citizens deserves respect. Or if Pelosi had said she was confident that justices would rigorously interpret the Constitution without regard to their personal preferences. Many Democrats are impatient with President Joe Biden for not more forcefully criticizing the Supreme Court.

That highlights another reality. Johnson and Pelosi may have been reciting partisan talking points but they weren’t only talking points. There’s no reason to suppose they weren’t perfectly sincere — probably milder versions of what they really believe.

It has been a season for finding out what people really believe, or at least for getting strong hints. The perception that ideological or cultural battles are distorting the judicial process is hardly bereft of evidence.

Justice Samuel Alito recently told Lauren Windsor, a liberal documentary filmmaker posing as a conservative activist, that probably the only way to end the polarization of modern society is with a climatic resolution of a long-term power struggle: “One side or the other is going to win.”

When Windsor said people need to fight to “return our country to a place of godliness,” Alito replied: “I agree with you. I agree with you.”

But Alito has been dismissive of suggestions that he is in the grip of bias. He wrote Congress that he would not recuse himself from the Trump immunity case after new revelations raised questions about his impartiality. The justice’s wife, Martha-Ann Alito, flew the American flag upside down outside their suburban Virginia home in January 2021, in what some interpret as a show of solidarity with Trump’s election denialism (which the Alitos say is not the case). Last year, she also flew a Revolutionary War-era flag some associate with Christian Nationalism at their vacation home on the New Jersey shore.

Alito said those who think he is biased are themselves biased, driven by “political or ideological considerations, or a desire to affect the outcome” of the immunity case.

That jibe captured another feature of the new debate over the legal system. People may be unfeigned in their own indignation, but there is pervasive insincerity in claiming not to understand why others are indignant.

Take Trump’s conviction. Before the trial, many Democrats privately winced that the charges — which were elevated from misdemeanors to felonies using an unusual legal theory — might not be the strongest case to make their point that Trump is a lawless president. Yet after the guilty verdict, those same Democrats now publicly scold conservatives for maintaining that the whole exercise was unfair and would not have been brought against any defendant not named Trump. (Many of those Democrats, incidentally, have defended Hunter Biden, who similarly was convicted of charges that never would have attracted a special prosecutor if his last name were different.)

Conversely, how many Republicans, on truth serum, believe Democrats have no fair reason to suspect that federal judge Aileen Cannon — a Trump appointee who is overseeing the case against Trump for allegedly illegally handling classified documents after leaving the White House — may be going out of her way to protect her appointer from political fallout? Who thinks it is outlandish to suspect, as critics have alleged, that she is deliberately slow-walking the case to ensure that no trial happens before the November election?

‘A vast right-wing conspiracy’

One way to measure the change is to travel back a quarter-century to January 1998. In the early days after news broke that prosecutor Ken Starr was investigating whether President Bill Clinton had lied under oath about a sexual relationship with young White House employee Monica S. Lewinsky, First Lady Hillary Rodham Clinton took her defense to NBC’s “Today” show.

The whole matter, she said, was the result of a “politically motivated” prosecutor who was working in concert with a “vast right-wing conspiracy.” In retrospect, there are lots of pieces of the Today show tableau that seem notable. Hillary Clinton was 18 years away from losing the presidency to Trump — in large part, she and many Democrats believe, because of the FBI’s role in amplifying and mishandling a politically charged investigation. Her questioner that day was Matt Lauer, who was 19 years away from losing his own career in a sexual harassment scandal.

At the time, however, it was Clinton’s “vast right-wing conspiracy” charge that drew headlines and scowls of disapproval from many people who believed it just wasn’t proper for such a prominent person to impugn the motives of a prosecutor and the legal system from which his authority flowed. Among those who disapproved was House Speaker Newt Gingrich, who had risen to power in part through weaponizing ethics scandals against Democrats.

A primary figure in Clinton’s world, who was shaping both her views and language, was writer Sidney Blumenthal, who was then working for the White House. His passion for elaborate conspiracy theorizing about Clinton’s opponents led White House senior adviser Rahm Emanuel to call him “G.K.” — short for “grassy knoll.”

In due course, Blumenthal and Clinton were both vindicated, as it came to light there was indeed a high degree of coordination between multiple conservative commentators and publicists and key sources feeding Starr’s investigation. (One of Starr’s deputies was ultimately appointed by Trump to the Supreme Court: Justice Brett Kavanaugh.)

Nowadays, there are few prominent voices in either party who don’t have their own version of what Clinton argued — that the justice system has been hijacked by obvious partisanship.

“You have a fake conviction based on a fake case brought by an outrageously conflicted judge,” Gingrich wrote when asked last month for his reaction to Trump’s guilty verdict. “This is the most corrupt case involving a presidential candidate in American history, and it sets a precedent which is frighteningly dangerous.”

When asked what he made of Gingrich’s Blumenthal-like response to the verdict, the ex-Clinton aide responded in kind: “It’s pure projection,” he said. “They are accusing the Democrats with what they have perpetrated.”

Did Blumenthal have any sympathy for the Republicans’ gripes, given that he gave voice to similar ones three decades ago?

“I don't think that [New York district attorney] Alvin Bragg has acted in any way like Starr,” Blumenthal protested. “I don't believe there were political motivations behind the [Trump] jury's verdict. Nobody has provided a scintilla of evidence for that.”

The coming battle

If many Democrats and Republicans quietly agree that Blind Justice’s blindfold is slipping, they disagree about how to put it back in place — or whether it’s even desirable to do so.

In certain precincts of the right, conservatives have moved beyond one-off denunciations of specific courts and their verdicts to more sweeping denunciations of the judicial system, which they argue is an integral part of the corrupt establishment that they aspire to destroy. Take, for instance, the ongoing efforts by Trump’s allies to recruit lawyers for a second Trump administration who are willing to engage in the sort of “lawfare” that they believe the left has weaponized against Trump. As many conservatives readily admit, the goal of these efforts is not to re-introduce norms of judicial fairness and impartiality to the justice system. The objective is to beat Democrats at their own game.

This bare-knuckled approach has even filtered into the more rarified segments of the conservative legal movement, where pockets of legal scholars have abandoned nominally neutral theories of legal interpretation — like originalism and textualism — in favor of theories like “common-good constitutionalism,” which openly proclaim their conservative orientation. To do otherwise, many conservatives argue, is to fight with one hand tied behind their backs.

On the left, meanwhile, some progressives have called on Democrats to rehash FDR’s court-packing scheme, while others have embraced the practice of electing judges. That was for many decades long derided on the left as a boon for opportunistic and politically ambitious judges to campaign as tough on crime. In an about-face, it is increasingly seen as a way to introduce a degree of overt political accountability into an already politicized justice system.