Supreme Court returns with a tattered, partisan image

The U.S. Supreme Court reconvened Oct. 3 with low public-approval ratings, with a majority of people wanting to set term limits on justices or expand the court to balance its far-right thinking.

Even justices on state supreme courts are worried the high court might undermine democracy in deciding an upcoming elections-law case.

In recent sessions, the court overturned the 50-year federal right to abortion, expanded the right to carry concealed weapons, weakened historic voting-rights protections, and undermined the separation of church and state.

That has unnerved citizens who expect the court to interpret The Constitution, to operate above partisan politics. Consider some recent opinion surveys:

* In the last two years, the court’s approval plummeted from 66 percent to 40 percent, according to the Marquette University Law School Poll.

* Americans of all ages said the court is “out of touch” on key is*sues, especially about the need for abortion access and gun regulations, according to the Morning Consult/Insider poll.

* Republican approval of the court is 45 percent higher than by Democrats —which is the largest partisan gap in 35 years of the survey by Pew Research Center.

* A majority of independents and those who identify as moderates want the court expanded, Morning Consult found.

* More than two-thirds of Republicans and three-fourths of Democrats said there should be limits on how long a justice can serve, based on Morning Consult.

Overwhelming backlash to the abortion ruling lead to protests outside the court building and the justices’ homes. Chief Justice John Roberts had tried to persuade fellow conservatives to reduce the legal time period for abortions rather than allowing states to set their own laws. Many of them have been extremely punitive.

Yet, during a recent talk at a legal conference, Roberts appeared to diminish the public response when he said, “simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court.”

The court is responsible for its own legitimacy, Justice Elena Kagan indicated in a July speech: “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem.”

Acknowledging that the last year had been difficult Roberts said, “I think just moving forward from things that were unfortunate is the best way to respond.”

One case the court has already agreed to consider could lead to more partisan control over elections — and more public outrage.

Four conservative justices — Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh — have expressed varying levels of support for the independent state legislature theory, a once-fringe idea that would undercut normal checks and balances in elections law.

It hinges on a literal reading of the word “legislature” in The Constitution’s Elections and Electors Clauses. Only state legislatures — not courts, governors or state constitutions — have the power to regulate federal elections and appoint electors, supporters insist. Many constitutional scholars reject that interpretation and view the theory as just another strategy to overturn elections.

The case, Moore v. Harper, concerns a North Carolina congressional map drawn to favor Republicans. It was rejected as partisan gerrymandering by the state’s Supreme Court. Republican lawmakers argue that the state court is powerless to act.

The Conference of Chief Justices, a group representing the nation’s top state judicial officers, took the rare step in filing a brief opposing the case. The Constitution, the brief said, “does not oust state courts from their traditional role in reviewing election laws under state constitutions.”

Republicans currently dominate 31 state legislatures. Most of them have been passing laws to suppress Democratic votes, limit access to voting and increase partisan control of elections. State courts often have been an immediate check on their actions.

The question for The Supreme Court is whether it will focus so much on what the nation’s Founders meant by “legislature” that it ignores current-day politics and the impact its ruling would have on our democracy.

“Life is complex, life changes,” recently retired Justice Stephen Breyer said during a recent CNN interview about the court. “And we want to maintain insofar as we can — everybody does — certain key moral political values: democracy, human rights, equality, rule of law, etc.”

Changing the rules that impact the court is unlikely to happen anytime soon. Adding a term limit would require Congress to amend The Constitution. That mandates a two-thirds vote from both the House and Senate and then ratification by three-fourths of the states.

Congress can increase the number of justices by itself. The number has changed six times — ranged from five to 10 — before settling at the present total of nine in 1869. At least 40 members of Congress have signed onto a bill to expand the court by four seats.

But President Biden has not supported this expansion. The bipartisan 34-member commission he created under progressive pressure, submitted a more than 280-page report in December that explored the pros and cons of various court changes. It made no recommendations.

Yet as the activist judges on this undeniably conservative court continue to rule, the momentum for change could grow as respect for the court ‘s decisions diminish.

As Breyer cautioned his colleagues: “You start writing too rigidly and you will see, the world will come around and bite you in the back.”