Sometime in the next two or three weeks, the Supreme Court will release a decision on abortion rights that probably will rank among its most controversial in decades.
The justices will take that step as their standing with the public sinks to its lowest point in decades.
For years, the Supreme Court enjoyed greater trust from Americans than the two elected branches of the federal government, but that status has eroded as Americans have increasingly seen the court as ideologically driven, several polls have shown.
Public approval of the high court has been dropping for two years. It took a further sharp downward slide last month after news broke that the justices were on the verge of overturning Roe vs. Wade, the half-century-old ruling that has guaranteed abortion rights nationwide. Roughly 60% of Americans consistently have opposed overturning Roe.
The justices, of course, are not supposed to make decisions based on public opinion — part of the point of giving power to life-tenured judges is to let them make principled decisions against the majority’s views.
But as the Supreme Court justices themselves have often said, public acceptance of their decisions depends on the perception that they are, in fact, based on principle, not politics. An increasing number of Americans doubt that.
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A more polarized view
Through the 1980s and ’90s and into the first years of the 2000s, more than 60% of Americans held favorable opinions of the court, according to polling by the Pew Research Center.
Gallup, too, in a long-running series asking about “trust and confidence” in American institutions, generally found the court ranking in the middle — far above such mistrusted groups as Congress and big business, but not as trusted as the military or small business.
It was almost inevitable, however, that the growing partisanship of the last two decades, which has caused many Americans to view nearly all institutions through the lens of Team Red versus Team Blue, would harm the standing of the court, which views itself as apart from both.
After President Obama’s election in 2008 and his appointments of Justices Sonia Sotomayor in 2009 and Elena Kagan in 2010, Republicans’ opinion of the court dropped sharply. That plunge on the Republican side deepened in 2015 after the court’s Obergefell vs. Hodges decision, which legalized same-sex marriage nationwide.
With the election of President Trump in 2016, Republican support for the court rebounded, but with his three conservative appointments — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — and the growing likelihood that they would take an activist role in overturning liberal policies, Democrats began to turn negative. Gorsuch’s confirmation in 2017, to a seat that Senate Republicans held open for a year by refusing to consider Obama’s nominee, Merrick Garland, appeared to mark a turning point for Democratic opinion, according to Gallup’s data on trust in the court.
Even with that decline, however, “approval of the court stood at 66% in September of 2020, the week before Justice [Ruth Bader] Ginsburg died,” said professor Charles Franklin, who directs the Marquette University Law School poll, which currently surveys opinion about the court every two months. By July of last year, approval had dropped to 60%.
By January of this year, with increasing attention to the potential rollback of abortion rights, the court’s standing had declined further and was as negative as it had been in nearly four decades, Pew found. In its survey, 54% of Americans held a favorable view of the court and 44% were unfavorable — notably worse than the roughly 70%-30% split that surveys had commonly found over the prior few years.
In both the Pew and Marquette surveys, the drop in approval of the court came mostly among Democrats. Roughly two-thirds of Democrats viewed the court favorably in 2020, but that number dropped to just under half by the start of this year, Pew found. Among liberal Democrats, only just over one-third viewed the court positively.
Statements by Gorsuch and Kavanaugh, and to a lesser extent Barrett, in their confirmation hearings that appeared to acknowledge Roe vs. Wade as a precedent might have caused some Democrats to hold off in changing their mind about the court. In May, when the end of Roe moved from a possibility to a near certainty, the erosion in support for the court among Democrats turned into a collapse.
In Marquette’s latest poll, taken just after a draft opinion that would overturn Roe became public, approval of the court dropped to 44% — 10 points lower than it had been in March. Approval dropped 23 points among Democrats — from 49% in March to just 26% in May, the poll found. Approval among independents also dropped slightly, while approval from Republicans moved a bit higher.
The result: “political polarization in views of the court has just dramatically widened,” Franklin said. The poll found a 42-point gap between Republicans and Democrats in their approval, compared with a gap of 15 points two months earlier.
Disapproval of the court among Democrats may be driven even higher by the continuing attention to the role that Justice Clarence Thomas’ wife, Ginni Thomas, played in backing efforts to subvert the 2020 election, a topic that the House committee investigating the Jan. 6 riot at the U.S. Capitol has been looking into.
Americans are not only more ideologically divided over the court, they are also more inclined to see the court as ideologically driven.
Three years ago, half of Americans saw the court as “moderate”; now one-third do, Marquette found. A majority of Americans now see the court as conservative, with nearly 1 in 4 seeing it as “very conservative.” Only 1 in 10 Americans see the court as liberal.
The problem for the court is twofold: If Americans see the institution as ideologically driven — just another political body — they’re less likely to accept the vast power that the justices hold. And if the court consistently makes decisions that go against the preferences of the majority, it could face the sort of crisis that has endangered its standing in the past.
Already, in January, Pew found that the share of Americans who view the court as holding too much power had risen over the last two years.
That remains a minority view: Close to 6 in 10 Americans said in January that the court held the “right amount” of clout. Among Democrats, however, the share saying the court holds too much power had risen to 40%. That share probably will increase after the expected decision on abortion.
And abortion, of course, is not the only issue on which the majority of the justices appear set on imposing the policy preferences of a minority of the country. Unless a last-minute change of mind sets in, the justices seem likely in the final weeks of their term to also significantly cut back on the power of the federal government to act against climate change. They are also likely to restrict the authority of states to regulate guns. Public opinion is mixed on gun regulation, but a sweeping pro-gun ruling would probably be unpopular.
The justices are, of course, sensitive to the idea that they are partisan actors.
Judicial authority depends on “a trust that the court is guided by legal principle, not politics,” Justice Stephen G. Breyer said last year in a speech at Harvard Law School.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
Justice Barrett stressed a similar theme a few months later during a speech at the University of Louisville.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said. “Judicial philosophies are not the same as political parties.”
That’s a tough position to uphold when so many of the justices’ positions on the most controversial cases can so easily be forecast simply by knowing who appointed them.
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Jan. 6 hearings
Peter Navarro, the former White House economic advisor, played a major role in encouraging former President Trump‘s efforts to overturn the 2020 election. As Mark Barabak wrote, Navarro had a long career in California politics before joining up with Trump. He started as a liberal Democrat and environmentalist in San Diego, where he almost won a race for mayor. Navarro’s career has a through-line, Barabak wrote: a monumental self-regard, a bottomless hunger for attention and an utter lack of grounding principles.
In the days immediately after the November 2020 election, a ragtag team of self-described cyber experts, analysts and political activists gathered at the Trump Hotel in Washington, offices in New York and a South Carolina plantation owned by attorney L. Lin Wood to try to find evidence to back their theories of election fraud. In a detailed account based on extensive interviews and new documents, Sarah Wire takes readers inside the conspiracy as it developed during the hectic weeks after the election.
Thursday’s televised hearing by the House committee investigating the Jan. 6 insurrection focused on the efforts by Trump and one of his lawyers, John Eastman, to pressure Vice President Mike Pence to join in efforts to overturn the election results, Wire reported. The committee also highlighted testimony that Trump’s actions put Pence’s life at risk.
If you need a catch-up on what took place, Noah Bierman has these takeaways from Thursday’s hearing.
Trump was aware the U.S. Capitol had been breached by his supporters when he condemned Pence in a tweet on the afternoon of Jan. 6, 2021, committee member Pete Aguilar (D-Redlands) said during the hearing. As Nolan McCaskill reported, Aguilar said that Trump was pushing the “legally and morally bankrupt idea that the vice president could choose who the next president can be.”
In advance of the hearing, Aguilar praised Pence for resisting those entreaties. “If the vice president would have succumbed to pressure … we would have had a constitutional crisis that would have threatened the republic,” Aguilar told Wire.
Freddy Brewster looked at Eastman and his career.
The committee also pressed GOP Rep. Barry Loudermilk about a tour he gave of the Capitol complex on Jan. 5, 2021. As Wire reported, the committee released security video of an unidentified person on the tour taking photos and video of entry points and other areas of the building.
The Justice Department sent the committee a formal letter asking for copies of witness interviews, Anumita Kaur reported. Committee Chairman Rep. Bennie Thompson (D-Miss.) said the panel would cooperate “in due time,” but not this week. The letter was the most public evidence to date of tension between the committee and federal prosecutors, who are running their own investigation of many of the same events.
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Abortion rate rises
The rate of abortions rose significantly in the U.S. during the Trump years, from 13.5 abortions per 1,000 women and girls of child-bearing age in 2017 to 14.4 per 1,000 in 2020, according to new data from the Guttmacher Institute. As Jennifer Haberkorn and Emily Alpert Reyes reported, the increase — from 862,320 abortions in 2017 to 930,160 in 2020 — marked the first upturn in decades. Changes in federal and state policies, including cutbacks in funds for family planning, and the economic disruptions from the COVID-19 pandemic may all have played a role.
The latest from Washington
In a victory for California employers, the Supreme Court limited a state labor law that has authorized private suits on behalf of groups of workers, even those who had agreed to resolve disputes through individual arbitration. As David Savage reported, the 8-1 decision held that the Federal Arbitration Act overrides the state law.
Vice President Kamala Harris announced an expansion of a federal program that provides healthcare coverage for lower-income women for up to a year after they give birth. As Bierman reported, four more jurisdictions joined the program — Maine, Minnesota, New Mexico and Washington, D.C. — bringing the total to 15, including California.
The latest from California
Rep. Karen Bass pulled ahead of rival Rick Caruso in the primary election for Los Angeles mayor after Tuesday’s count of vote-by-mail ballots boosted the congresswoman. As Dakota Smith reported, Caruso led in early mail-in ballots and those cast in person on election day, but as often happens, late-arriving mail ballots have leaned strongly toward more progressive candidates. The next ballot count is scheduled to be released on Friday.
The same flood of late-arriving ballots has given a lead to community activist Eunisses Hernandez in her challenge to Los Angeles City Councilman Gil Cedillo, David Zahniser reported. As of Tuesday’s count, Cedillo was trailing Hernandez by 292 votes. Because only those two candidates were running, there is no runoff in that race. In another City Council race, incumbent Mitch O’Farrell is being forced into a runoff and is now trailing his opponent, labor organizer Hugo Soto-Martinez.
Why is the count taking so long? Smith asked county officials, who said that so far, more than 1.2 million ballots have been counted, 80% of which were either mailed in or dropped off at voting centers or drop boxes — many of them in the final days of the voting period that concluded June 7. Before a ballot can be counted, it has to be scanned to check that the voter signature matches the one on file and that there aren’t any signs of irregularities.
Lawyers for both sides delivered opening statements in a case against Dae Yong Lee, a real estate developer accused of paying $500,000 to ensure that former Councilman Jose Huizar would clear the way for the construction of a 20-story residential tower, Zahniser reported. The trial is the first of three growing out of investigations into alleged payments of bribes to Huizar. His trial is slated for February.
The final runoff matchups for California’s congressional districts have started to come into focus. As Seema Mehta reported, Democratic Rep. Mike Levin will face Republican Brian Maryott in the 49th District, which straddles Orange and San Diego counties. In the newly drawn 42nd District, an overwhelmingly Democratic, Latino-majority district that stretches from southeast L.A. County cities down to Long Beach, GOP schools trustee John Briscoe made the runoff against Robert Garcia, a Democrat and Long Beach’s mayor.
A proposal in the Legislature to mandate that employers give workers leave to tend to family responsibilities has been defeated in an Assembly committee, Mackenzie Mays reported. The bill would have created anti-discrimination provisions for caregivers and required bosses to accommodate workers when it comes to unforeseen circumstances such as school and day-care closures. Dozens of employer organizations opposed the bill, warning that “family responsibilities” was too broad a classification and would put too great a burden on businesses.
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