Above all else, the U.S. Supreme Court is supposed to be rigorously nonpartisan, considering the law in an objective manner and adjudicating disputes without bias toward the views of co-partisans. But is the Supreme Court truly a bastion of objectivity, when most other U.S. institutions are explicitly partisan?
The court goes to great lengths to display its political independence. Justices are not listed with a partisan label. They tend not to attend party events, such as conventions or rallies. And they definitely don’t speak to the press on behalf of a party. This is because the court believes it derives its influence and legitimacy through its objectivity. And if the court is perceived to be partisan, it could lose its legitimacy and power over legal outcomes.
Above all, the court is focused on maintaining its legitimacy and avoiding the appearance of partisanship. The court has no enforcement mechanism and thus it relies on the goodwill of the states and the federal government to enforce its rulings. This is an important distinction from the other branches. The executive, both at the federal and the state level, has the power to enforce the law with force. The Supreme Court does not. So if the court loses the backing of the other branches, it could find its rulings ignored and its influence diminished.
Analysts have hypothesized that the court’s focus on legitimacy has increased in today’s modern, polarized environment. For example, Justice Roberts cast the deciding vote to save President Obama’s signature legislation, the Affordable Care Act. Some have argued that this was to make the court appear to be nonpolitical.
A similar situation is playing out right now. Mississippi has formally asked the court to overturn Roe v. Wade, long a Republican goal. “Mississippi has said the quiet part out loud. The purpose of its blatantly unconstitutional abortion ban is to have the Supreme Court overrule 50 years of precedent and allow states to ban abortions,” said Alexis McGill Johnson, president of the Planned Parenthood Action Fund. A court that strikes down Roe v. Wade could face a legitimacy crisis in the eyes of Democratic partisans and blue states.
If the courts are eventually perceived to be acting in a partisan manner, it could lead to states, localities, and even the federal government ignoring their rulings. This would further contribute to the decline in trust in political institutions. However, in such a hyper-partisan era, the court may decide that the perception of objectivity isn’t as important as it used to be. It is also possible that voters in such conditions will view the court as partisan regardless.
Independent courts are a key component of successful democracies. Without them, it will be tougher for the U.S. institutions to hold. The Supreme Court has long avoided the label of “partisan actor.” But it is unclear how much longer that will be able to continue.