Supreme Court tumbles in public opinion: Can it sink lower? | Michael Douglas

These are not heady days for the justices of the U.S. Supreme Court, if they are eyeing the polls. In the fall, Gallup found just 41% of those surveyed approved of the court’s job performance. That echoes a record low, and reflects a stark slippage of late, the court two decades ago with approval exceeding 60%.

The decline in public trust follows a similar pattern.

Why has the court’s reputation suffered? There are the ethical messes, notably, Justice Clarence Thomas enjoying financial benefits from wealthy Republican donors. The court went through the motions of embracing an ethics code, yet the requirements remain largely unenforceable — and call for less from the justices than others on the federal bench.

The conservative majority has mowed down well-settled precedent, for instance, regarding abortion rights and bearing arms. At times, it has shown a striking disregard for the record established by district courts, most telling on affirmative action and a case involving a high school football coach gathering players and others at midfield for public prayer.

There is an additional factor that especially deserves amplification. It goes to the conservative majority taking up matters unripe for hearing because they lack a live legal dispute, or case or controversy.

In its zeal, the majority pushes forward, anyway, amounting to judicial self-aggrandizement, a power grab at the expense of Congress, the executive and the public interest in checks and balances.

To advance a case, plaintiffs must show they are harmed by the defendant’s actions. More, the injury must be “actual or imminent,” not “conjectural” or “hypothetical,” as the court explained three decades ago. That is what is meant by having “standing” to enter the courtroom.

In a stinging dissent last summer involving the Biden White House plan to reduce student loan debt, Justice Elena Kagan reminded why the rules of standing serve as “guarantors of our constitutional order.” They ensure that “courts do not overstep their proper bounds.”

Proceed without such rules, and courts too easily become forums for the “settlement of ideological and political disputes.”

Kagan argues that, in this instance, the majority “reaches out to decide a case it has no business deciding.”

Why? Because the six states behind the lawsuit failed to show a real injury. They admitted as much in relying on the harm posed to a separate state entity in Missouri, a legally and financially independent public corporation that services federal student loans.

Cancel debt, and the loan servicer would lose fee revenue. Yet that shortfall would not affect the state. The loan servicer surely could sue, but it refused to join the lawsuit. Undaunted by this absence of standing, the majority forged ahead in striking down the loan relief, deciding a question more appropriately handled by those branches that are politically accountable.

Add that the court elided language in the law allowing the executive to waive or modify student loans in an emergency (the pandemic), and Kagan’s conclusion follows: “From the first page to the last, today’s opinion departs from the demands of judicial restraint.”

Consider another example of eschewing restraint, the court restricting the ability of the Environmental Protection Agency to regulate carbon emissions from power plants. Again, what standing? The regulations, unveiled by the Obama administration in 2015, never took effect. The Trump White House repealed them. The Biden team then said it planned to write new rules, the process continuing today.

That didn’t stop the court from issuing an opinion, complete with the convenient vibe of its new “major questions doctrine,” arguing agencies cannot proceed without explicit direction from Congress in matters of “vast economic and political significance.”

Then, there is the wedding website designer in Colorado who refused to work with gay clients. The court sided with her, citing her free speech rights. It did so though she had never made a wedding website for a paying customer, and the state had not taken action to enforce its law barring such discrimination.

No matter, apparently, precedent holding that a case is not ready if it rests on contingent events that may or may not take place.

And now, the conservative majority appears poised to overturn the longstanding precedent giving federal agencies room to interpret ambiguous legislative language in crafting regulations. The 1984 precedent, backed later by conservative judicial icon Antonin Scalia, makes sense in that agencies have the expertise to make such judgments. Certainly, the courts do not.

Yet the current majority seems unfazed by the absence of a dispute here, too. The herring fishermen behind the lawsuit objected to a requirement that they pay for federal monitors onboard to protect against overfishing. Since then, the rule has been rescinded, and the fishermen fully reimbursed.

No case or controversy? No problem, evidently, for this court.

Michael Douglas was the Beacon Journal editorial page editor from 1999 to 2019. He can be reached at mddouglasmm@gmail.com.

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This article originally appeared on Akron Beacon Journal: Supreme Court suffers self-inflicted loss of public trust