SCOTUS’s power relies on public trust. What happens when that weakens?
I want to take you all the way back to May of 1788. A new nation was coming together. The Constitution had not yet been fully ratified, and a series of essays was being published in New York newspapers to rally support for its ratification, all signed with the pen name Publius. The essay published on May 28th, in fact written like most of The Federalist Papers by Alexander Hamilton, was titled The Judicial Department. It's a masterful argument for our third branch of government, the judiciary, which Hamilton referred to as the least dangerous branch to the political rights enumerated in the Constitution, because quote it will be the least in a capacity to annoy or injure them. The judiciary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. End Quote. Merely judgment. That's how Hamilton tried to thread the needle on judicial independence. He argued that Supreme Court justices should be unelected and serve lifetime appointments so that they could operate irrespective of politics. That was the check against Congress and the executive branch. The balance against unelected lifetime judges would be their inability to actually enforce their own decisions. Neither sword nor purse, neither force nor will. The idea was the justices make the rulings, but it's up to the other branches of government, the president and Congress, to actually enforce them. The power of the Supreme Court lies in a cooperative government and a trusting public. What this means is that we as a society must believe the Court is an independent arbiter of constitutional questions. Congress and the president, and the citizenry that elects them must believe that the Court's decisions are worthy of being followed and enforced. In that sense, the Court is a bit like Tinkerbell. If we stop believing in it, in its power, its legitimacy vanishes. And The Supremes court legitimacy right now is vanishing before our eyes. In a Gallup poll conducted before the Supreme Court's current term, 49% of Americans said they had a great deal or a fair amount of trust in the judicial branch of the government. Since 1972, that number has hovered around the 60s. It hit a low of 47% in 2022. Today, the Supreme Court faces dual legitimacy crises. There's the credibility crisis caused by the actions of some of the justices, from Justice Thomas's undisclosed financial relationships to Justice Alito's secret recordings and upside down flag, both of which have cast doubt on their political independence. And then there's the court's recent track record of tearing down decades old precedent with deeply unpopular decisions like the overturning of Roe versus Wade, gutting the Voting Rights Act, and dismantling affirmative action. And then there is tomorrow we will learn whether this court will say that Donald Trump was able to freely and openly commit crimes without consequence. We already have an electorate that has lost faith in Congress. The current Congress is on track to be one of the least productive in American history. If Donald Trump wins back the presidency in the fall, he literally has a 900 plus page playbook full of detailed plans to dismantle the civil service apparatus of the government, consolidate power in the executive branch, and weaponize the Justice Department and the Supreme Court. The last branch, the least dangerous, is rolling back long held personal rights. They're accepting lavish gifts from billionaire political players, refusing to even discuss with congressional leaders ethics or oversight, and at best, at the moment, seemingly helping Donald Trump delay his remaining criminal trials until after the election. And at worst, well, we'll we'll see in the next 24 hours. But here's the problem. When people stop believing in the systems that keep democracy running, those systems will cease to function.