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In 1932, President Herbert Hoover laid the cornerstone for the building housing the Supreme Court. Construction of the building was completed in 1935. Etched on the building's pediment are the words "Equal Justice Under Law."
The late Justice Lewis Powell Jr. said, "Equal justice under law … is perhaps the most inspiring ideal of our society." Tragically, rather than promoting this ideal, the court's current majority has been sandblasting away the four-word engraving.
One result of former President Donald Trump's excessive abuse of the courts has been increased public scrutiny of our entire justice system, including the Supreme Court. The public now realizes that the court suffers from the polarization inflicting the country while also lacking transparency and independence and wallowing in tepidness.
The court's lack of transparency became apparent when the press unearthed gifts which Justices Samuel Alito and Clarence Thomas received from entities with matters before the court. The ideal of "Equal Justice Under Law" does not tolerate the secretive receipt of gifts by justices from entities seeking favorable rulings.
The court's response to these disclosures was, for months, silence. Eventually, under public pressure, the court adopted unenforceable ethical guidelines. Public confidence in the court has only waned.
Compounding the problem is inaction in the face of ideological conflicts where objectivity is compromised. The public is befuddled when it sees flags in apparent support of an insurgent cause flying on Alito's properties or Thomas asserting his objectivity despite his spouse's activist commitment to conservative causes.
The failure to recuse when a conflict is obvious undermines the ideal of "Equal Justice Under Law" and suggests that justices believe they are above the law. When congressional leaders sought a meeting to confront these issues, Chief Judge John Roberts demurred and ironically cited the need to maintain "judicial independence."
To promote the ideal of "Equal Justice Under Law," the court must be nonpartisan. President Harry Truman stated, "Whenever you put a man on the Supreme Court, he ceases to be your friend." Not true today. Regarding Trump's felony conviction, Republican Speaker of the House Mike Johnson called for the court's intervention saying the justices he knows "personally" are "deeply concerned" about Trump's plight. How did he know that absent improper backdoor lobbying?
The court's makeup consists of six justices nominated by Republican presidents and three justices nominated by Democratic presidents. Unanimous decisions have declined dramatically while split decisions are on the rise. According to Empirical SCOTUS, there were "more 6 to 3 decisions last term as a fraction of the total decisions of the Court than in any previous term in the Court's history."
The court's 6-3 decisions show a distinctly partisan bent. The 6-3 decision in Brnovich v. Democratic National Committee makes it difficult for voter rights groups to challenge voter suppression laws. The 6-3 decision in Americans for Prosperity Foundation v. Bonta facilitates the flow of dark money from wealthy individuals who tend to share Republican Party values. The recent 6-3 decision approving a Republican gerrymandered congressional map in South Carolina is the latest example of the court's placing partisanship over fairness.
Further, the court has buddied up to Trump. Its decision to review the well-reasoned appellant court opinion regarding presidential immunity put the case on ice. That gave Trump the gift of delay while denying voters the benefit of assessing Trump's culpability for the Jan. 6 insurrection.
Republican Liz Cheney expressed frustration with the court's slow-walking of the immunity case: "It cannot be that a president … can attempt to steal an election … but our justice system is incapable of bringing him to trial before the next election four years later."
Further, by tossing aside long-standing precedent as exemplified by the decision in Dobbs overturning Roe and undermining reproductive freedom, the court's majority is reflecting a political commitment made to the president who advanced their nomination. This predetermined outcome is not an honest umpire calling balls and strikes, it is arbitrarily changing the results after the game is played. Bowing to political pressure makes the court appear as merely "politicians in robes," not champions of equal justice.
The court's tepidness has also chiseled away at the equal justice engraving. Trump's undercutting the rule of law by bashing the judiciary caused District Judge Reggie Walton to speak out publicly against Trump's vitriol. Other judges also expressed concern over Trump's efforts at judicial intimidation. Meanwhile, the court remained silent.
Not long ago, the court's approval rating was over 60%. Recently, the court's approval rating has hit the lowest in modern times hovering around 40%. The public's declining confidence in the court results from its own failure in promoting the ideal carved on the very building where they purport to labor.
Robert Moilanen is a retired attorney from Minnetonka whose work history includes serving as special assistant to former Vice President Walter Mondale.
