Newsweek: Judges Rebel Against the Supreme Court
Judges Rebel Against the Supreme Court
Jun 26, 2024 at 6:00 AM EDT
Senior Writer
There is a growing chorus of Supreme Court critics coming from within the judiciary. Judges on both sides of the ideological spectrum and across various levels have become increasingly willing to speak out, warning America about the future of democracy.
Among those critics are retired Judge David S. Tatel. A Clinton appointee who served for nearly 30 years on the U.S. Court of Appeals for the District of Columbia, Tatel recently revealed in a new memoir, Vision: A Memoir of Blindness and Justice, that part of the reason he stepped down from the court in January was because he grew tired of the Supreme Court’s “low regard” for judicial principles.
He’s not alone. Tatel is one of at least three judges who offered a strong rebuke of the Supreme Court recently. In a May Slate interview, Hawaii Supreme Court Justice Todd Eddins, who was appointed by former Democratic Governor David Ige, slammed the justices for being “incredibly dishonest about how law and facts are cherry-picked.” The same month, U.S. District Judge Carlton Reeves, an Obama appointee, also hit the court for its qualified immunity doctrine: In a ruling on a false accusation case in Mississippi, he wrote that the doctrine, established by the Supreme Court and which protects state and local officials from individual liability, was “an unconstitutional error.” Both Eddins and Reeves are sitting judges.
“My views, I think, are widely shared throughout the judicial system,” Tatel told Newsweek. “Obviously, there are people who don’t agree with them, but there are, I can assure you, a large number of judges who will not find anything I’ve said in this book surprising.”
Jennifer Ahearn, senior counsel for the Brennan Center’s Judiciary Program, said it’s “pretty remarkable” that some judges are choosing to speak out, given how “unusual” it is for judges to speak outside of their work.
“I suspect that, frankly, that’s the tip of the iceberg,” Ahearn told Newsweek. “If a few judges are willing to stick their head above the parapet, then probably a lot of other judges also feel the same way and just aren’t in a position to do that.”
Alex Badas, an assistant professor specializing in judicial politics at the University of Houston, told Newsweek that the criticisms reflect a growing polarization of the judiciary and a general dissatisfaction with the Supreme Court’s conservative supermajority.
“Before, when the court was more balanced, there existed somewhat of an equilibrium. Conservatives would win some major cases, and liberals would win some major cases, too. So, anger toward the Supreme Court would not build up to the point where sitting judges would feel comfortable speaking out against the court,” Badas said. “That equilibrium does not exist now.”
Given this polarity, some conservatives have dismissed critiques from liberal judges, like Tatel, Eddins and Reeves, arguing that their disagreement is with the outcome of the court’s rulings and the bench’s recent shift to the right.
But Tatel said his disapproval is “about the act of judging. It’s not about the results. It was one thing to follow rulings I believed were wrong when they resulted from a judicial process I respected,” he wrote in his memoir. “It was another to be bound by the decision of an Institution I barely recognized.”
Judicial criticisms of the Supreme Court have come not only from the left. Retired Judge J. Michael Luttig, a conservative who himself was a Supreme Court contender under President George W. Bush, has become one of the most outspoken critics of the court. In March, Luttig cowrote an op-ed for The Atlantic that blasted the Supreme Court for doing “a grave disservice to the Constitution and the nation” by imposing “an ahistorical misinterpretation” of the Fourteenth Amendment in Trump v. Anderson—a case challenging former President Donald Trump‘s 2024 candidacy under the Constitution’s disqualification clause.
U.S. Circuit Judge Kevin Newsom, a Trump appointee, also knocked the Supreme Court in a February speech at a symposium hosted by the Harvard Journal of Law & Public Policy. Newsom took issue with how the current bench has relied on historical “tradition” to justify its landmark rulings, an approach that the federal appeals judge said risks leaving “too much to individual judges’ discretion.”
The People Concur
The judiciary’s increasing displeasure with the Supreme Court comes as public opinion of the court remains at an all-time low. A 2023 Gallup poll showed that only 41 percent of U.S. adults approve of how the court is handling its job, a sign that the Supreme Court has struggled to bounce back from its record low of 40 percent approval in September 2021. The court’s rating fell to that devastating low after it declined to block a controversial Texas abortion law, a move that has been seen as a precursor to its 2022 decision to overturn Roe v. Wade. Prior to September 2021, the court enjoyed positive approval, seeing 58 percent support in July 2020.
The growing disapproval is both a response to the court’s recent decisions and part of a greater trend that’s been seen over the past two decades. Even though the Supreme Court’s approval dropped 9 percent after its ruling in the controversial case of Bush v. Gore in December 2000, it still sat at 59 percent in January 2001. Support also bounced back less than six months later, returning to 62 percent in June of that year. And despite the court shifting right, even Republicans are losing trust in the Supreme Court. An Ipsos poll conducted in June found that just 52 percent of Republicans said they trust the justices “a great deal” or “a fair amount,” a 14-percent drop from July 2023.
That same poll found that 48 percent of Americans continue to trust federal judges and 49 percent say they trust state court judges, but some worry that could change because of the Supreme Court. Retired Connecticut Superior Court Judge Thomas Moukawsher told Newsweek the loss of trust in the judiciary as a whole has “trickled down from the top.”
As retired U.S. District Court Judge Paul Grimm, an Obama appointee, told Newsweek, “It is absolutely critical that the public has faith and confidence in the judiciary, and what that means is that every judge—whether it’s a trial judge or appellate judge or Supreme Court justice—they have to recognize that they live in a glass house and that everything they do is subject to personal scrutiny.”
Ethical Exceptions
“From the historical perspective, this is indeed a time of notable turmoil around the Supreme Court,” Barry Friedman, the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, told Newsweek. “Some of that is because of ideological disagreement, which happens cyclically. But part of it is because of an intransigence on the part of some of the justices to play by basic ethical rules that [they] feel should not apply to them.”
Despite adopting an ethics code in November, the nation’s top court has found itself at the epicenter of ethical controversies. Justices Samuel Alito and Clarence Thomas, both conservatives, have come under particular scrutiny over undisclosed luxury trips as well as the actions of their spouses, which critics say pose a conflict of interest, especially as the court hears cases related to the January 6 Capitol attack.
In May, The New York Times reported that Alito’s wife, Martha-Ann, flew an upside-down American flag—a symbol adopted by supporters of the “Stop the Steal” movement—three days before Joe Biden‘s inauguration. And text messages from 2020 published by The Washington Post revealed that Thomas’ wife Ginni repeatedly asked Trump’s chief of staff to challenge the results of the 2020 election and urged state legislators in battleground states to appoint alternate slates of electors.
These revelations have led Alito and Thomas to face continued calls for recusal, but both have rejected those calls to step aside. Alito told lawmakers last month that the flag was flown not by him, but by his wife, an “independently minded private citizen” who “makes her own decisions,” while Thomas responded to the reports about his luxury trips last year by stating that he was not required to report this type of “personal hospitality.”
“If you look in the federal judiciary, everybody except the Supreme Court is subject to an enforceable ethics code, and if you look at the traditions of being a judge, judges are just zealously careful, in general, about ethics,” Moukawsher, who was appointed by former Democratic Connecticut Governor Dannel Malloy, said. “So, to see the top of the chain not have any enforceable code—and seeing it reflect back on them as though the whole judiciary is making ethical mistakes—is pretty painful for [judges].”
“It puts pressure on everybody that there’s some sort of ethical lapse among judges in America because it’s going on at the top,” he added. “The lack of an enforceable code is probably the greatest insult to the rest of the judges.”
Tatel said the ethics controversies are part of the reason he believes there’s been a drop in approval for the Supreme Court, but he added: “Loss of trust is complicated.”
Politicization of the Court
The retired judge said that when trying to understand why the Supreme Court is finding itself in the middle of far more difficult and politically sensitive issues—a position that is poised to make the court less popular—there are reasons both in and out of the court’s control.
For one, the circumstances that the court is in is the result of a “largely dysfunctional” Congress, Tatel said. Because lawmakers fail to solve many of the issues that it should, those matters end up before the court. But, Tatel noted that the Supreme Court also has the power to choose which cases it hears.
“And so, to a certain extent, the court is itself at fault here by wading in, as often as it does, to issues that maybe would be better left to Congress or just more public debate,” he said.
Tatel said that this, combined with the fact that courts have become more contentious, contributes to the decline in public support. “It’s inevitable that the public is going to be dissatisfied with the work of the court as it seems to be more of a political institution,” Tatel said. “The public doesn’t see the court as a legitimate court, but rather as an unelected political body. It’s inevitable that the popularity will drop.”
A Redfield & Wilton poll conducted exclusively for Newsweek found that 4-in-10 voters say the Supreme Court will be “extremely important” in determining how they vote in the 2024 election. Another 3-in-10 said it was “moderately important” and about 2-in-10 said it was “somewhat important.” Only 5 percent of voters say the court does not matter at all to their vote.
This year’s presidential candidates already know the Supreme Court will be top of mind when voters head to the polls in November.
Biden delivered a stark warning in early June about what the election means for the court, saying that he expects the 2024 winner will likely have the chance to fill two vacancies on the Supreme Court—a decision the president said would be “one of the scariest parts” of a second Trump term.
“He’s going to appoint two more [justices] flying flags upside down,” Biden said at the Los Angeles fundraiser.
A Quiet Rebellion?
Moukawsher, who retired last year, said he wouldn’t be talking if he still sat on the bench because “it would violate everything I just talked about. But I’m certain there’s concern that the conduct of [Supreme Court justices] in various circumstances has been embarrassing to lower court judges.”
“I would hope that when you hear comments from colleagues—particularly distinguished and respected colleagues—that that would, to any judge, cause them to open their eyes,” Grimm added.
Pointing out that the Supreme Court is not only the Supreme Court, but the head of the federal judiciary, Ahearn acknowledged that “it’s certainly a risk” for judges to be speaking out about the high court.
“Hopefully that’s something the Supreme Court justices are taking into account as they think about how they are responding to these kinds of situations,” she said.
Badas said it’s especially crucial that the Supreme Court listens to the criticisms leveled against it by lower court judges because those are the individuals responsible for implementing Supreme Court decisions.
“If lower court judges think the Supreme Court is producing incorrect decisions, the lower courts may be more likely to try to ignore the Supreme Court’s decisions or apply them in a very narrow manner,” he said, adding that while the high court would still get the final say since it could overturn these hypothetical lower court decisions, it would be impossible for the court to reverse every decision.
Badas also said reversals may not deter judges, pointing to former Judge Stephen Reinhardt. In 2011, while sitting on the 9th U.S. Circuit Court of Appeals, Reinhardt told the Los Angeles Times, “If anything, it’s a compliment.”
Tatel, however, disputed Badas’ hypothesis, saying that every one of the judges he knows does their very best to apply Supreme Court decisions.
“We [are] bound by Supreme Court decisions, even the ones we [don’t] agree with,” Tatel said. “I don’t know any judges who say, ‘I’m not going to follow it because I don’t agree with it.'”
Although the justices haven’t responded directly to the criticisms from their peers, it appears the Supreme Court is already beginning to pay attention to the shift in public opinion. Dan Urman, a law professor who specializes in the Supreme Court at Northeastern University, told Newsweek that it was important for the justices to do so because the court “needs public support for its legitimacy.”
“The court is out of step with public opinion in a variety of ways—especially abortion [and] gun rights—and this term, we might see the justices tack back to the middle on these issues, [like] mifepristone and keeping dangerous people from possessing weapons,” Urman said.
A day after Urman spoke to Newsweek, the Supreme Court unanimously upheld access to the abortion pill, delivering a win to abortion advocates just two years after it rolled back the constitutional right to abortion in Dobbs v. Jackson. A week later it upheld a federal gun bad for people who are subject to a domestic-violence restraining order.
“Many appeals court judges who have their work reviewed by [the Supreme] Court will say the same thing,” Tatel said. “It’s not all their decisions. There have been a few recent decisions that are quite good. It’s not every case, it’s just a lot of the major ones.”
“The court is capable of writing [and] producing nonpolitical, well-reasoned opinions,” he said, citing the Supreme Court’s rulings in the National Rifle Association and Consumer Financial Protection Bureau cases in May. “It’s just that, all too frequently, it doesn’t do that.”
