How Justices with Stature Could Repair Trust in the Supreme Court

The narrow pool from which recent presidents have selected Supreme Court nominees has contributed to the public’s lack of trust in the institution.

(Photo by Anna Moneymaker/Getty Images)

JUSTICE FELIX FRANKFURTER, IN a dissenting opinion issued in 1962 during his final weeks on the bench, observed of the Supreme Court that its “authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction.”

That authority is now in danger due to the public’s lack of confidence in the Supreme Court and the widespread perception that the justices are partisan political actors rather than impartial jurists.

Yet the Supreme Court justices are among the most intellectually gifted group of lawyers ever to preside together. They are graduates of prestigious law schools with impressive academic records, and five of them served as law clerks on the Supreme Court earlier in their careers. Why, then, is the public so reluctant to believe that they are faithfully carrying out their constitutional role?

It’s not just that many of its decisions are controversial. In most years, a plurality of the Court’s decisions are unanimous, and only a sliver are decided by a 5-4 vote. Throughout its history, the Court has rendered controversial decisions that substantial segments of the public opposed. But until the present, the public broadly trusted the integrity and honesty of the justices pronouncing the decisions. Today’s widespread mistrust is new and disturbing.

A possible explanation may be found by comparing the backgrounds of the current justices to those of the vast majority who preceded them. At the time of their nominations to the Court, the current justices were, to the general public, nobodies—total unknowns whom the public had no particular reason to respect. While they had successful legal careers, it’s doubtful that more than 1 percent of the population had ever heard of any of them.

These public tabulae rasae, immediately upon being thrust into the national spotlight, had their independence compromised by the politicization of the post-Roe v. Wade confirmation process. As the justices who decided Roe died or retired, presidents of each party sought to nominate individuals whose vote to affirm or overrule Roe could reasonably be predicted.

As a result, since 1981, fourteen of the fifteen nominees for the Court were sitting federal appeals court judges whose principal qualifications were a judicial record that indicated (or seemed to indicate) how they would vote. Senators, determined to protect or attack Roe—or at least to reap the political benefits of appearing to do so—savaged the nominees’ judicial and personal records in the hope of derailing their confirmation.

Thus, by the time the nominees took their place on the Supreme Court, the public viewed them as partisans, chosen not because of their legal abilities but because they could be expected to do the bidding of the political party whose president had nominated them. This built-in skepticism about the objectivity of the recent justices took hold easily, because they arrived at the Court with no independent public stature.

The background of those currently serving on the Supreme Court is strikingly different from those who preceded them during the first 200 years of our nation. When George Washington selected members of the first Supreme Court, he chose men who played significant roles in the Revolutionary War and the formation of the Constitution—people the public knew and respected. Washington’s successors continued the tradition of nominating individuals who were known to the public because of their distinguished public service.

During the first 200 years of our history, many of those nominated for the Supreme Court had distinguished public careers as senators, congressmen, governors, attorneys general, or solicitors general (Justice Elena Kagan also served in this role), in addition to prominent lawyers from within and without the federal judiciary. Many of them had not only legal experience—often less impressive than that of the current justices—but political experience. The first chief justice, John Jay, was a member of both Continental Congresses, an ambassador, and governor of New York. John Marshall was a member of Congress and secretary of state. Sixteen other former members of the House of Representatives went on to serve as justices, in addition to 14 former senators. Many of the other most famous and influential justices had held elected office: John Marshall Harlan was attorney general of Kentucky, Charles Evans Hughes was governor of New York before his first stint on the Court (and secretary of state before his appointment as chief justice), and Earl Warren was governor of California. Candidates of such public stature and reputation gave Americans reason to trust their independence.

The current crisis caused by the lack of confidence in the Supreme Court has led to a variety of proposals for radical changes in its structure, ranging from term limits at the more modest end to a radical expansion of the number of justices at the more extreme. Before adopting any such measures, Congress and the president (and future presidents) should consider favoring distinguished public servants with a wider variety of experiences for the Court. This would also require a nomination and confirmation process that wouldn’t drag the reputations of the country’s most able public servants through the mud.

Congress should consider enacting legislation requiring that some vacancies must be filled by lawyers who have distinguished themselves primarily in elective office, in administrative agencies, or in private practice, and limiting the number of sitting federal judges a president can nominate. In my view, Congress has sufficient power to define the qualifications for potential Supreme Court justices, but even if it doesn’t, a Senate consensus on this subject coupled with comparable commitments by presidential candidates could reform the process effectively.

The Supreme Court plays a dual role in the constitutional system. It is both the court of final appeal, resolving disputes between parties and giving direction to the federal judiciary, as well as one of the three major branches of government entrusted by the people to govern the country. A greater diversity of experience on the Court would not only help restore public confidence in its work and integrity by instilling public confidence that the justices will carry out their responsibilities with open minds, but it may also lead to better, less contentious decisions, which in turn will strengthen the Court’s reputation and public trust in it.