While it likes to pride itself as a paragon of impartiality, the Supreme Court, now stacked with a strong conservative majority that is willing to legislate from the bench, is sliding into a crisis of credibility. Public approval of the court has plummeted by 15% over the past three years, while nearly two-thirds of Americans believe that the Supreme Court is primarily motivated by politics.
Much of this crisis is informed by the body's confirmation process, which has in recent years become an open invitation for partisan histrionics of all kinds. The GOP's theatricality was center stage, for instance, during the confirmation hearings of Justice Ketanji Brown Jackson, who they subjected to a medley of bad-faith questions like, "Can you provide a definition for the word 'woman'?" and "Do you agree with this book that is being taught to kids that babies are racist?"
Recently, Americans saw this spirit of partisanship carry over into the court's actual jurisprudence, when Politico reported on a leaked draft majority opinion revealing that the court had already informally voted to overturn Roe, effectively turning back the clock on reproductive rights by half a century. But while Roe's reversal will be incredibly consequential, the court has also handed down a number of separate decisions that similarly reek of political bias:
1 Ohio v. Occupational Safety and Health Administration
Last November, President Biden rolled out one of his most consequential COVID-19 policies to date, mandating that all private businesses with over 100 employees require their workforce to get vaccinated or undergo routine testing. The policy was set to be implemented by the Department of Labor's Occupational Safety and Health Administration (OSHA) on the basis that COVID poses a unique workplace hazard. At the time, scientists and public health experts overwhelmingly backed the mandate, in large part because the data has shown that mandates are effective.
However, by last December, numerous businesses and trade groups, including National Federation of Independent Business, an association of small business owners, had filed emergency applications for the policy to be scrutinized by the Supreme Court. The following month, in a 6-3 opinion, the court shot Biden's mandate down, calling it a "blunt instrument." The mandate, the court wrote, "draws no distinctions based on industry or risk of exposure to Covid-19" and is "a significant encroachment into the lives – and health – of a vast number of employees."
2 Alabama Association of Realtors v. Department of Health and Human Services
In March 2020, at the height of the pandemic, the Centers for Disease Control announced that the federal government would be imposing an eviction moratorium in order prevent the spread of COVID and support millions of Americans who lost their jobs as a result of the crisis. The policy, according to Duke researchers, reduced the pandemic death rate by 11% and was extended by the Biden administration as the crisis dragged on.
But in August, facing a clarion call from real estate interests, the Supreme Court rejected the CDC's moratorium, putting millions of Americans with unpaid rent at risk of being evicted. The court's decision, much to the contempt of many, was handed down via shadow docket, where judges can deliver unsigned rulings without jumping through the traditional hoops of argumentation and deliberation.
3 Federal Election Commission v. Ted Cruz for Senate
In 2018, Sen. Ted Cruz, R-Tex., lent his own re-election campaign "Ted Cruz for Senate" $260,000 on the day before his general election in order to spur a challenge to provision within campaign finance law. The 20-year provision, Section 304 of the Bipartisan Campaign Reform Act, bars lawmakers like Cruz from raising any more than $250,000 after Election Day for the purposes of repaying pre-election loans that they gave themselves during their campaign.
After Cruz filed a lawsuit challenging Section 304, the Supreme Court ruled this month that the cap violated the First Amendment and "burdens core political speech without proper justification." Justice Elena Kagan, one of the court's three dissenters, expressed concerns that the law's rescission might allow problematic back-scratching, largely because lawmakers could have donors pay off their campaign loans in exchange for political favors.
"The politician is happy; the donors are happy. The only loser is the public," Kagan wrote. "It inevitably suffers from government corruption."
4 United States v. Vaello-Madero
In 1972, Congress passed the Supplemental Security Income (SSI) to supply people who are disabled, or low-income, or above the age of 65 with government-subsidized income. The program was designed to be eligible for residents living in all fifty states, including the U.S. commonwealth of the Northern Mariana Islands, and was never officially extended to residents of Puerto Rico, a U.S. territory.
In 2016, Jose Luis Vaello-Madero, a Puerto Rico-born man who lived in New York for several decades, filed a lawsuit after his social security checks were discontinued when he decided to move back to Puerto Rico to care for his wife. A district court ruled in his favor, arguing that the exclusion of Puerto Rico from SSI contravenes the equal protection clause of the 14th Amendment. However, the case was appealed to the Supreme Court, which ultimately ruled 8-1 against Vaello-Madero.
"In devising tax and benefits programs, it is reasonable for Congress to take account of the general balance of benefits to and burdens on the residents of Puerto Rico," Supreme Court Justice Kavanaugh wrote, noting that the territory's citizens are generally not required to pay taxes.
The Government Accountability Office estimates that more than 300,000 Puerto Ricans would have been eligible for the program.
5 Shinn v. Martinez Ramirez
Back in December, the Supreme Court gathered for oral arguments around a case involving Barry Jones, who currently awaits his sentence on death row for the alleged rape and murder of girlfriend's four-year-old daughter. In 2018, Jones' conviction was overturned after a federal court found that he was not given sufficient legal representation in violation of the defendant's Sixth Amendment rights. The judge ruled that "there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted."
However, on Monday, the Supreme Court decided that state prisoners have no constitutional right to bring new evidence to court indicating that they were not provided with ample counsel. Supreme Court Justice Clarence Thomas said such a right "encourages prisoners to sandbag state courts."
Christina Swarns, executive director of the Innocence Project, told NPR that "the opinion leaves innocent people in the nightmarish position of having no court to go to for justice."