The anonymous leak of Justice Samuel A. Alito Jr.’s draft opinion overturning the federal law legalizing abortion has accelerated the politicization of the Supreme Court, court watchers say.
Congress and activist groups, not the justices, have made it more difficult for the court to appear independent and insulated from public opinion and political backlash, they say, and the leak only made it worse.
David Janovsky, an analyst with the nonpartisan Supreme Court watchdog group Project on Government Oversight, said the court has become more politicized because it is powerful and run by a small group of people with little accountability. The high court increasingly also makes decisions on matters that a gridlocked Congress has been unable to legislate.
“The events of this week certainly encapsulate lots of concerns about the court’s politicization,” Mr. Janovsky said. “But the court’s politicization is also a much larger and longer-term issue.”
Tom Fitton, president of the conservative Judicial Watch, said liberal-leaning lawmakers and activists have sought to politicize judicial nominees and the justices themselves, treating them like politicians who should be held accountable to the public.
Mr. Fitton cited as a recent example Senate Democratic Leader Charles E. Schumer’s 2020 speech to activists on the Supreme Court steps. Mr. Schumer, now the Senate majority leader, warned Justices Brett M. Kavanaugh and Neil M. Gorsuch they would “pay the price,” if they ruled to make abortion illegal.
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Justice Kavanaugh’s confirmation hearing, Mr. Fitton said, was another effort to politicize the court by left-wing protesters who swarmed the Capitol to derail his confirmation over sexual misconduct accusations while he was in high school.
Left-wing activists mobilized again, this time on Justice Kavanaugh’s front lawn in 2021, demanding his resignation after he authored the court’s majority opinion upholding the Texas abortion ban.
“The left’s political operations see the court as an institution just like anything else,” Mr. Fitton said. “They are treating it like a senator, or congressman, or a corporate entity, they put pressure on. And all bets are off.”
Chief Justice John G. Roberts Jr. this week ordered an investigation into the leak, and the unauthorized disclosure of the draft is considered unprecedented.
Conservatives speculate a clerk for one of the liberal-leaning justices provided the document to the media to stir up enough opposition to reverse the court’s impending ruling, expected in late June.
Liberals say it may have been a clerk for a conservative-leaning justice hoping the leak would lock in the decision.
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Carrie Severino, president of the conservative Judicial Crisis Network, said the court’s once-ironclad secrecy is what helped build its long-standing reputation as a nonpolitical institution.
The leak of the draft shattered that secrecy, she said, and that may be a sign the court is shifting further into the political arena.
“I know a lot of people think that the judges are much more political than they were,’’ Ms. Severino said. “Unfortunately, this is just evidence of those politics, seeping inside the walls of the court to some extent.”
News of the opinion pushed Democratic lawmakers and pro-choice activists into overdrive, denouncing the ruling and even accusing the justices of lying during the confirmation hearings, even though none directly answered whether they would uphold the federal abortion law.
Sen. Elizabeth Warren, Massachusetts Democrat, renewed calls to increase the size of the court to eliminate the conservative majority.
Sen. Mike Lee, a Utah Republican who clerked for Justice Alito, wrote in a Deseret News op-ed this week that the leaked draft “subjects the court to public and partisan pressures in an already charged environment.”
Public opinion of the high court has diminished in recent years, Pew Research found. Pollsters said it was due mostly to a big decline in support among Democrats, who frowned on a trio of new justices appointed by President Trump, a Republican.
Among Democrats, 57% said the court is conservative, compared to 18% of Republicans, a Pew Poll found in February.
Supreme Court confirmation hearings have become more partisan in the past few decades and have deepened the rift between the two parties.
Republicans remain angry over the defeat of Judge Robert Bork’s nomination in 1987. Democrats said he was an extremist who would end abortion, restore racial segregation and stop schools from teaching evolution. Four years later, Democrats tried to derail Justice Clarence Thomas from reaching the high court with public hearings featuring Anita Hill, who accused him of sexual harassment in the workplace.
Democrats remain bitter and angry over the Senate GOP’s decision in 2016 to block Supreme Court nominee Merrick Garland, who President Obama selected to replace the late Antonin Scalia.
The increasingly partisan nomination process has practically eliminated bipartisan confirmation votes.
Justice Roberts, nominated by President George W. Bush in 2005, was confirmed by a vote of 78-22, with 22 Democrats joining all Republicans.
Incoming Justice Ketanji Brown Jackson, nominated by President Biden in February, won confirmation in a 53-47 vote in April. Just three Republicans voted with Democrats.
Court historians say contentious confirmations may be new in recent decades, but they were common in the past.
In the 19th century, Congress rejected one out of every three Supreme Court nominees, according to University of Texas professor Jeffrey K. Tulis. He said modern congressional objections are more likely to be based on “scandalous personal behavior,” rather than judicial philosophy.
“Those objections are easier for the public to interpret as politically-motivated, contributing to the idea that justices are no more than political actors,” wrote Andrew Breiner, an editor at the John W. Kluge Center at the Library of Congress.
• Susan Ferrechio can be reached at sferrechio@washingtontimes.com.
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