Today I have the honor of speaking to the judges and lawyers in the 2023 Ohio Judicial conference on the Supreme Court in Columbus, Ohio. I will be discussing the last year of cases and controversies for the Court, incluiding recent and upcoming decisions. Justice Ruth Bader Ginsburg once said that “it’s hard not to have a big year at the Supreme Court.” However, this is shaping up as another huge year for the Court.
The Court is coming off one of the most historic and impactful terms in its history. Yet, the coming docket has cases that could bring major rulings related to gun rights, free speech, the Chevron Doctrine, and even the constitutional viability of the wealth tax.
The prior cases also undermine the common narrative that the Court is hopelessly divided along ideological lines. The number of unanimous cases still account for just under half of the cases. Even the 6-3 decisions often showed a mix of aligned justices where conservatives and liberals were found on both sides.
In Federalist 78, Alexander Hamilton wrote:
“…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. .. The judiciary…has no influence over either the sword or the purse…neither FORCE nor WILL, but merely judgment…”
History has not exactly born out Hamilton’s prediction of the “least . . . capacity to annoy.” The Court remains at the center of our political divisions and rage. Yet, the public continues to support the Court as an institution and the vast majority overwhelmingly rejects calls from politicians like Elizabeth Warren (D., Mass.) and many professors to pack the Court.
Polling shows 91% of Americans believe an independent judiciary is a crucial safeguard of our civil liberties and 72% of Americans believe that the politicization of the Supreme Court threatens judicial independence. Notably, 59% oppose attacks on the integrity of some of the justices that have become commonplace in the media and among liberal commentators.
However, despite the disagreement that many have with some recent decisions, it remains an institution with a higher popularity than Congress or other institutions. As members of Congress insist that the public has lost trust in the Court, they ignore that it retains the trust of 43% the public while Congress is at 18%. That is still not where it should be, but it is remarkable given the thousands of stories hitting the Court, its members, and its alleged partisan agendas.