Editor’s Note: Barbara A. Perry is the Gerald L. Baliles Professor and director of presidential studies at the University of Virginia’s Miller Center. She was a Supreme Court fellow in 1994-95. Follow her on Twitter @BarbaraPerryUVA. The opinions expressed in this commentary are hers. View more opinion on CNN.
Renowned Supreme Court Justice Oliver Wendell Holmes Jr. compared the peaceful ambiance of the nation’s highest court to “the quiet of the storm center.” As anyone who has experienced a hurricane knows, howling winds and pelting rain prevail until an eerie calm signals that the eye has arrived. Then the storm recommences when the center moves on.
A bullseye might now be the more apt metaphor for the US Supreme Court, which is at the center of incoming fire after the unprecedented leak of a draft opinion by Politico on May 2. The preliminary opinion, authored by Justice Samuel Alito and joined by four other conservative justices, would overturn Roe v. Wade, the court’s 1973 precedent that guaranteed a national right to abortion.
Since that ruling, conservatives have been calling for a ban on the premature ending of pregnancies and they have excoriated justices for not voiding Roe. Now, progressives have taken to the streets, including at the court’s doorstep, to express their vehement opposition to what will surely be the end of abortion access in half the states that have eliminated, or are poised to ban, that option.
The justices will issue a final opinion in Dobbs v. Jackson Women’s Health Organization, which will likely uphold Mississippi’s limit on abortions, by late June. If the leaked draft remains intact, Roe’s precedent will be extinguished, and its replacement will become settled law. Some liberals fear the court’s reasoning that abortion is not a right because it is not mentioned in the Constitution could also eventually invalidate previous rulings upholding the right to contraceptives, sexual relations and marriage equality for interracial or LGBTQ couples.
Just as stunning as the leak itself, from an institution that is famously airtight and prides itself on ignoring public reaction to its work, was Chief Justice John Roberts’ immediate confirmation that the premature opinion is authentic. From the moment he succeeded his mentor, Chief Justice William Rehnquist, in 2005, Roberts has emphasized the need to protect the court as an institution, especially its legitimacy in the eyes of the American people. He even expressed a desire to avoid closely divided rulings in order to promote confidence in their results.
Roberts’ public announcement that he had ordered an internal investigation into the leak, led by the court’s marshal, is further evidence that he is understandably worried about the impact of this tectonic shift in the tribunal’s traditional protocols. Like the Founding Fathers who gathered in Philadelphia during the summer of 1787 to draft a new constitution, the Supreme Court performs its most delicate work in secret.
Operating under a strict veil of confidentiality has allowed it to wrestle out of the public eye with the most contentious legal and political issues that cross its threshold each year. It discusses cases and votes on them in a confidential conference, with no clerks or staff present. It circulates its draft opinions with the confidence that all negotiations over language, interpretation and outcomes remained private – until now.
When it officially announces its most controversial opinions, it does so in the formal style of a decision rooted in law and representing the court as a corporate body, even referring to itself as “we” or “this Court,” despite the fact that a single justice authors the opinion. When joined by at least four other justices, the decision reflects the court’s final judgment, forged in contention but ultimately representing a unified majority of the justices.
Jurists’ customary regalia “gives the impression of uniformity in the decisions of the priestly tribe,” according to the late federal judge Jerome Frank. “Says the uniform black garment to the public mind: Judges attain their wisdom from a single superhuman source; their individual attitudes must never have any effect on what they decide,” wrote Frank, who maintained a more realistic view of all-too-human justices.
How will the Supreme Court resume its standard operating procedures when justices must now wonder if their conversations and written communications may be leaked? Their collegial traditions, like shaking hands with each other before taking the bench for oral argument, hardly seem an effective bulwark in a hyper-partisan era.
The court sits squarely in a governmental system that periodically exposes it to politics. Yet the Founders tried to insulate the federal courts from the lowest form of politics by presidential nomination and Senate confirmation of judges, rather than election, and by appointment for “good behavior,” in effect, life tenure. The Supreme Court reflects cyclical polarization in this country but has always recovered from such schisms.
Its Bush v. Gore decision, for example, which decided the 2000 presidential race in favor of Texas Gov. George W. Bush, provoked predictable partisan responses. The day after the ruling, 81% of Gore supporters disagreed with the court’s decision, while 93% of Republicans lauded it, according to Gallup polling. Yet just one month after the divisive outcome, the court received a 59% approval rating; only a few times since the early 2000s has its approval rating reached that height. Vice President Al Gore’s immediate acceptance of the court’s determination contributed to the perception of the institution’s legitimacy.
As recently as last fall, however, the Supreme Court’s approval rating had dropped to 40%, a record low since 2000, suggesting that unpopular decisions among conservatives and liberals on Texas’s abortion limitations, mask mandates and eviction moratoriums were taking a toll.
Alexander Hamilton noted that the judiciary has neither the power of the purse nor the sword. “Judgment” is its only authority, which can be severely undermined by a decision opposed by most Americans, especially when it affects their basic life choices, as with abortion. Sixty-one percent of adult Americans polled in mid-2021 believed abortion should be legal during pregnancy’s first trimester.
As Justice David Souter observed in the 1990s, “Most people are willing to accept the fact that the Court tries to play it straight… We are, in fact, trading on the good faith and the conscientiousness of the justices who went before us. The power of the Court is the power of trust earned – the trust of the American people.”
That faith has been grievously wounded by the flagrant violation of the court’s norms. Can the tribunal reclaim its “priestly” status? It has done so after disastrous opinions upholding slavery in 1857 and striking down economic regulations in the 1930s. It can’t change the current external polarization that surrounds it and that has invaded its sacred precincts via the appointment process.
It can alter its own behavior through individual justices and, more importantly, as an institution, by returning to its shared norms of self-restraint. Even if it has five votes to overturn precedent, it would behoove the majority not to declare the court’s own decisions as “egregiously wrong from the start.”
The leaked opinion’s evisceration of Roe’s 7-2 decision in those words might prompt Americans to ask why they should ever trust the tribunal. Moreover, if basic law governing people’s actions is so changeable, how can they plan their lives around it? Supporting Chief Justice Roberts’ attempts to preserve the court’s legitimacy should be the goal of all his associate justices, as well as their clerks and all staff members.
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Court employees should sign confidentiality agreements, with immediate dismissal for violations. Only impeachment can remove a sitting justice, but we have already seen efforts to apply professional ethics to the court in the wake of Ginni Thomas’ pro-Trump activities. The justices could also bolster the court’s image by declining invitations to speak at institutions perceived as partisan.
At the laying of the Supreme Court’s cornerstone in 1932, Chief Justice Charles Evans Hughes proclaimed, “The Republic endures and this the symbol of its faith.” With our democratic system now at risk from authoritarian threats, both internal and external, the Roberts Court stands at a tipping point that will determine the tribunal’s – and even the Constitution’s – destiny.
Correction: A previous version of this article incorrectly stated the approval rating of the Supreme Court after it ruled on the Bush v. Gore case. It was 59%.