Why does everyone hate the Supreme Court?

Politics, News

Here’s a ruling the Supreme Court would probably like to appeal: according to a Gallup poll, more people now disapprove of the Court than approve. Jokingly known as the Supremes, the highest court in the land is less popular than ever before.

Where does the discontent come from?

Americans of both parties point to recent decisions that outrage them. Republicans were disappointed when the Court upheld the Affordable Care Act and legalized same-sex marriage. Democrats objected to the Citizens United ruling, which opened the floodgates to virtually limitless electioneering expenditures by corporations (and unions), as well as to the Bush v. Gore decision, in which the Court essentially decided who won the 2000 presidential election. Interestingly, both parties can point to victories and defeats, which might indicate the Court is more balanced than people believe.

Behind the decisions that have rankled so deeply is the Court’s role in upholding the Constitution. Many of the cases require deep analysis required to determine exactly how the Constitution impacts issues like birth control and health insurance, and the Court finds itself issuing rulings that sound more like decisions of morality than interpretations of a 200-year-old document. As a result, 76 percent of Americans believe the Court is allowing politics to influence its decisions.

The divisiveness about the Court also highlights another important rift within the country: not Republican vs. Democrat, but young vs. old. Voters under age 40 feel more positively about the Court than do their elders—fascinating when you consider that before the next election the average age of the Justices will be 75.

Does the Court represent the people?

The Court has a demographic problem—critics say that it in no way resembles the American populace. Not only are the justices considerably older than most of the population, but the Court’s makeup fails to represent the country’s racial, ethnic, and gender composition.

Out of the Court’s nine members, there is just one black justice, one Hispanic justice, and three female justices. And with six Catholic and three Jewish justices, the Court—for the first time in its history—has no Protestant members. It’s hard for some to believe that a panel of people who look nothing like so much of the population can make decisions fair to all.

Good work if you can get it

Members of the highest court are appointed by the president and confirmed by the Senate. Presidents can only appoint a Supreme Court justice when there is a vacancy on the Court, so it’s not something all presidents get to do, and when the opportunity arises, it provides a unique chance to influence American law for years to come. The Constitution sets forth no actual qualifications required of a Supreme Court justice, which means that presidents have discretion to nominate anyone they wish (although to date, every justice has been a lawyer).

The lack of requirements and standards have led many people to question some nominees. For instance, when George W. Bush nominated Harriet Miers, his White House counsel who had no judicial experience, so many people objected that Bush withdrew the nomination. Yet Earl Warren had no judicial experience and served as one of the most celebrated—and in some quarters, most reviled—Chief Justices in American history.

Like all federal judges, the justices of the Supreme Court are appointed for life—another aspect of the position that has been criticized. Presidential candidate Ted Cruz has said he believes there should be retention elections for the Supreme Court, basically allowing the voters to decide if a justice should keep his or her seat. He’s not alone. Others have pointed out that since the justices often end up being policy makers, they should be chosen by the people.

But any system of popularly electing or retaining the Supreme Court justices would require a constitutional amendment, an unlikely prospect. So for now, those who disagree with the decisions of the Supreme Court must hope that the next vacancy will be filled by someone more to their political liking.

Where does the Court go from here?

So much of what happens with the Court depends on the vagaries of timing: which justice will retire next, and who will be the president to fill that vacancy. Lawyer and court watcher Jeffrey Toobin predicts “The conservatives on the Court are poised for a comeback.” He also believes that public opinion will continue to exert a huge influence on the Court. “When it comes to Supreme Court decisions, it is usually safe to bet that a majority of the justices will come down on the side favored by most of the public.”

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