The courts are not equal, and it is naive for anyone to think otherwise.
The other day, former House Speaker Nancy Pelosi was asked a simple question which in an earlier era would have prompted a flurry of banalities from civics classes about the nation of laws or the wisdom of our founding fathers.
Anderson Cooper, CNN’s Anderson Cooper asked: “Do you trust the Supreme Court?”
Pelosi replied, “No.” “I believe they’ve gone rogue.” It’s very unfortunate.”
Her comments came just a few short weeks after her successor, Mike Johnson, had a similar opportunity to speak on the integrity and fairness of the justice system.
The speaker said, “Today marks a sad day in American History,” following Donald Trump’s conviction in New York on felony charges for falsifying documents. This was a political, not legal exercise.
Monday is the last day of the Supreme Court term. The court will make a landmark decision on whether Trump can be prosecuted for trying to sway the 2020 elections.
The timing is right to highlight a historical development that has been so gradual that it’s easy to overlook its significance. Left and right sides of the country, who are always divided on almost every major issue in the national life, have come to a surprising convergence: both sides believe that the American justice system simply isn’t on level.
Details are a point of contention for partisan combatants. Each side is aggrieved by different cases. The loudness of the arguments and their ideological bent tend to mask a common belief. It is widely accepted that the legal system of the United States, starting with the Supreme Court, is tainted by partisanship and bias.
It is not the case that all courts will be infused with politics. In what part of American history was this not true? It would have been naive to deny that at multiple points in the last generation, from Bush v. Gore through to the repeal of Roe v. Wade.
However, a phenomenon that reached its apogee by 2024 is new. The increasingly aggressive declarations about judicial illegitimacy are different from political complaints in the past, not only in terms of degree but also kind. They are also putting American law and politics in new territory.
Pelosi’s and Johnson’s statements brought the new reality into sharp focus.
Their language isn’t particularly flamboyant according to current standards. In the past, a casual claim of judicial ineligibility would have shocked a former or current speaker. The argument that the justice is so distorted and corrupted by politics, that it can’t be trusted in its fundamentals reflects the mainstream thinking of their parties.
It would have been more impressive if Johnson said that while he was disappointed in Trump, a jury made up of his fellow citizens deserved respect. Pelosi could have said that she is confident the justices will interpret the Constitution with rigor, regardless of their personal preferences. Many Democrats are frustrated with Joe Biden because he has not been more vocal in his criticism of the Supreme Court.
This brings to light another reality. Johnson and Pelosi were reciting talking points, but not just talking points. It’s not reasonable to assume that they were not sincere. They probably said milder versions than what they actually believe.
This has been the season to find out what people truly believe or, at least, get strong hints. It is not hard to see that the perception of ideological or cultural wars distorting judicial processes is not without evidence.
Justice Samuel Alito told Lauren Windsor recently, a liberal documentarian posing as conservative activist, that the only way to stop the polarization in modern society was with a final resolution to a long-term struggle for power: “One or the other will win.”
Alito responded: “I’m with you.” When Windsor said that people must fight to “return the country to its former godliness,” Alito agreed. I agree with you.”
Alito, however, has dismissed any suggestion that he may be biased. After new revelations raised doubts about his impartiality, he wrote to Congress that he wouldn’t recuse himself in the Trump immunity case. Martha-Ann Alito’s husband, the justice, flew an upside-down American flag outside their suburban Virginia house in January 2021. Some interpret this as a sign of solidarity with Trump’s election denialism (which they say is not true). She also displayed a flag from the Revolutionary War, which some believe is associated with Christian Nationalism. This was at her vacation home in New Jersey.
Alito stated that those who believe he is biased themselves are biased. They’re motivated by “political, ideological, or a wish to influence the outcome” in the immunity case.
This jibe captured a new feature in the debate about the legal system. Although people may not be feigned about their indignation towards others, they are insincere when they claim to not understand the reasons for other’s indignation.
Take Trump’s conviction. Many Democrats were privately concerned that the charges, which were elevated to felonies by using an unusual legal theory, might not have been the best evidence to prove that Trump was a lawless President. After the guilty verdict was announced, the same Democrats publicly criticize conservatives who claim that the entire exercise was unfair and the charges would not have been filed against anyone else. Many of these Democrats have, incidentally defended Hunter Biden who was similarly convicted of accusations that would not have been brought against him if his name had been different.
How many Republicans believe that Democrats do not have a good reason to suspect Aileen Cannon, a Trump appointee overseeing the case of Trump’s alleged illegal handling of classified documents following his departure from the White House, may be doing everything she can to protect her appointer against political fallout if truth serum is taken? It is absurd to think, as some critics have suggested, that Aileen Cannon is deliberately slowing down the case in order to prevent a trial before the November elections.
‘A vast right-wing conspiracy’
To measure change, one can go back to January 1998. After the news broke that Ken Starr, a federal prosecutor, was investigating whether Bill Clinton lied about a relationship with a young White House employee Monica S. Lewinsky under oath, Hillary Rodham Clinton defended herself on NBC’s Today show.
She said that the whole affair was due to a prosecutor “politically motivated”, who worked in conjunction with “vast rights-wing groups”.