Things are getting intense over at the Supreme Court, to the evident consternation of the conservative justices. When the leak of a draft opinion that would overturn Roe v. Wade unleashed public anger, Justice Clarence Thomas warned darkly that if the public allowed itself to believe the court was getting politicized, civil breakdown would soon follow.
But here’s the reality: The Supreme Court has been extremely political for a long time. What has the justices upset is that the public may be finally getting wise to that fact.
New polls underscore the point. A survey just released by Quinnipiac University finds that 63 percent of Americans believe the Supreme Court is mainly motivated by politics, while only 32 percent think it’s mainly motivated by law. Perhaps as a result, 69 percent say the justices should be term limited.
This comes after a recent Yahoo News/YouGov poll found that 74 percent of respondents said the court had become “too politicized.” Confidence in the court has fallen by almost 20 percentage points since 2020.
Now imagine how public sentiment might be affected if and when the court strikes down Roe. The Quinnipiac poll finds that 65 percent agree with Roe; surely such a move would drag perceptions of the court further into the political mud.
In another reflection of how this could shift our politics, a coalition of state-based pro-choice groups will come out on Thursday in support for Supreme Court expansion. Whatever you think of this goal, it’s obvious that groups working with people directly affected by court decisions are set to intensify pressure on Democrats to fight a lot harder over the court’s future makeup.
Simply put, it’s becoming even more of a zone of political combat. As Jamison Foser, a progressive strategist and adviser to Take Back the Court, the group organizing the push, told us, the announcement will reflect “a growing recognition of the need to rebalance the Supreme Court and disempower the court’s right-wing majority.”
“Without doing so, everything from abortion and voting rights to environmental protections is likely to be struck down,” Foser said.
An interesting fact about the new polling is that it shows broad public support for doing something in response to the politicization of the court. The Quinnipiac poll, for instance, finds that 69 percent of Americans favor limiting the years that justices serve on the Supreme Court, while 27 percent oppose it.
This makes sense in ways that are perhaps not obvious. The public’s belief that the court is infected by politics may reflect an intuition that the stakes have grown way too high in the battles over each new justice. Term limits might address that: While they’re a terrible idea for elected officials, for justices they could make the conflicts over filling vacancies less apocalyptic.
One of the most common proposals along these lines is to have justices serve staggered 18-year terms. That’s still quite a long time, but not so long that presidents would feel it necessary to find the youngest like-minded nominees possible to sway the court over generations.
In that system, the president would appoint two justices every term, no more and no less. It wouldn’t make confirmations free of politics, but at least it would make each confirmation less spectacularly consequential.
And adopting a system like this would acknowledge what everyone knows by now: The protestations and playacting meant to convince us that the justices have no biases or policy preferences were always ridiculous.
Such a structure would essentially admit that every president will be trying to turn the court toward their party’s preferences (while of course selecting nominees who are strong on the law and well qualified for the high court) and would seek to manage this in a fair way.
Now that the public may be realizing that the court will to some degree be a zone of political contestation, perhaps we can have a real debate about what a better system might look like.