Shortly after a Manhattan jury convicted Donald Trump of 34 felonies, Speaker of the House Mike Johnson made a curious plea on Fox News. He begged the Supreme Court to intervene on Trump’s behalf. Johnson didn’t claim that Trump was innocent. He didn’t claim that Trump did nothing wrong or did not commit crimes. Instead, the Louisiana Republican simply gestured at vague “abuses of the system” and said he expected the highest court in the land to step in because he “knew some of the justices personally.”
If this feels wrong, that’s because it is. Johnson’s Hail Mary suggestion to his personal friends on the Supreme Court to help Trump evade accountability for his crimes is yet another illustration of the damage that the far-right Supreme Court is doing to the fabric of American democracy. After all, even if the justices ignore the speaker’s plea, they have already dawdled so long on presidential immunity that they have ended any possibility that Trump could be tried for the January 6, 2021, insurrection before election day.
Especially after the Court issued its Dobbs decision overturning a half-century of abortion rights, a majority of Americans are incensed about the justices’ behavior. Fixing the Court ought to be a centerpiece of the fight against the far right’s assault on democracy.
The Supreme Court is facing a crisis of legitimacy. A series of scandals around gifts to Justice Clarence Thomas exposed its lack of ethical guardrails, which would have forced disclosures and recusals from any other public servant. The Court belatedly instituted a weak and nonbinding Code of Ethics that will do little to control unethical behavior, as it allows the justices to monitor themselves rather than outside auditors.
Justice Samuel Alito has also been implicated in financial impropriety for a fishing trip with billionaire Paul Singer when the financier had business before the Court. But Alito’s biggest scandals have been over leaks and his extremist, overt partisanship. He is strongly implicated in the leaks of highly controversial decisions, including Hobby Lobby v Burwell and, of course, the Dobbs decision that overturned Roe. More recently, it has been revealed that Justice Alito and his wife flew two flags outside their properties associated with Christian nationalism and Donald Trump’s “Stop the Steal” attempt to overturn the 2020 election. The Alitos have also offered dubious explanations about the timing and reasons for raising the flags. But the Justice won’t recuse himself from cases related to Trump’s attempted coup against democracy.
And, of course, there is the court’s extremist political lurch. The majority of the Court’s conservative jurists were appointed by presidents who lost the popular vote. One was installed by an unprecedented refusal to allow Congress to vote on a Democratic president’s nominee until a Republican was in the Oval Office. The result is a 6-3 hyper-conservative majority that is rapidly tilting the country’s legal framework in favor of corporate power and Christian dominionism.
As a result, the Court has become deeply unpopular, with over 60 percent of Americans disapproving of its job. This comes at a time when the judiciary arguably has more power over Americans’ lives than at any other time. Research shows that most voters believe the Court is conspiring to protect Trump on his immunity claims and that opportunities exist for candidates to run on opposition and reforms to the Court.
The Biden campaign should take note. The president’s standing with voters lags far behind Senate Democrats. The reasons for this are complex, and things could change before November. But right now Democratic policies are popular; Donald Trump and the Supreme Court are not. Democrats have handily outperformed the GOP in special elections in the post-Roe world. The likely reality is that the more the presidential election is a referendum on Joe Biden, the less likely Democrats will prevail. The more it is a referendum on Donald Trump and the Court, the likelier it is that the MAGA Christian nationalist movement will be stopped at the ballot box.
It’s essential to avoid the common trap among political intelligentsia that the public already understands the consequences of the presidential election for the future of the courts. The battle for the White House will likely be won or lost among lower-information and less engaged voters whose understanding of the mechanisms of political outcomes can be tenuous at best—and most of whom currently support Trump. An astonishing 17 percent of voters blame Joe Biden for the loss of abortion rights in Dobbs.
There is a significant opportunity to educate voters on what Trump has done to them by putting extremists on the court where they are unaccountable, free to take back long-held rights and enrich themselves as well.
