Dissension at the Supreme Court as justices take their anger public

On Oct 1, 2021

The extraordinary public display extends beyond any single justice or case, although the majority’s decision to let a Texas near-ban on abortions take effect has plainly triggered much of the consternation.

Alito told a Notre Dame Law School audience that the court has been wrongly cast as “a dangerous cabal … deciding important issues in a novel, secretive, improper way, in the middle of the night.”

He and other justices newly speaking out have condemned the news media for playing up the significance of the court’s September 1 decision that allowed an abortion ban after about six weeks of pregnancy to take effect. But as dissenting justices wrote, the decision undermined the court’s precedent on abortion rights dating back nearly a half century. And the impact on the ability to obtain abortions in Texas is undeniable.

Rarely have so many justices uttered such provocative, off-the-bench comments at the same time. Some are at cross purposes, but they all highlight the potential for declining confidence in America’s highest court. Public opinion polls and new congressional scrutiny reinforce a possible new threat to the court’s reputation and legitimacy.

Conservatives have tried to minimize the significance of their rulings and suggested they are merely responding to cases that come their way. But as the right-wing majority — now with three Donald Trump appointees — has moved aggressively, liberals have not kept their despondency quiet.

“There is going to be a lot of disappointment in the law, a huge amount,” Justice Sonia Sotomayor warned in a speech Wednesday.

Justice Sonia Sotomayor: 'There is going to be a lot of disappointment in the law, a huge amount'

The gulf between the justices is not unlike the differences between red and blue America. A disconnect also exists between the conservative majority and the public. Gallup reported that the court’s job approval rating had dropped 9 points since July, to 40% of Americans approving of the job the justices are doing.

That poll was conducted in early September after the order declining to block the Texas abortion law and after it also had rejected Biden administration initiatives on US asylum policy and an eviction moratorium during the pandemic.

Other recent polls have shown that fewer than one-third of Americans want Roe v. Wade, the 1973 decision that legalized abortion nationwide, overturned.

The court’s image and institutional acceptance may matter even more in the weeks ahead, as the justices undertake a new session that includes continued abortion-rights disputes, a test of Second Amendment rights and gun regulation, and a controversy over public aid for religious schools.

No more ordinary speeches

The speeches of Supreme Court justices tend to be rooted in history and broad legal themes and they often seek to be inspirational. They usually shun talk of cases or current events. Most avoid politics.

Justice Amy Coney Barrett’s address at the University of Louisville’s McConnell Center in early September stood out, and not only because it was the newest justice’s first major…