Conversations with Great Thinkers

Beyond the Bench: How Politics is Eroding Judicial Trust in America

• Jim Lanshe • Season 1 • Episode 6

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The foundation of American democracy is cracking beneath our feet. In "Beyond the Bench: Politicization, Public Perception and the Crisis of Judicial Trust," we dive deep into a troubling transformation that has turned our courts from respected arbiters into perceived political weapons.

Trust in the Supreme Court has collapsed to historic lows—just 38% of Americans now express confidence in the institution, down from 62% a decade ago. This isn't merely an abstract crisis of public opinion; it strikes at the heart of our constitutional system. As retired Justice Stephen Breyer warned, "If the public sees judges as politicians in robes, its confidence in the rule of law will be seriously eroded." That erosion is well underway.

From Senate Majority Leader Chuck Schumer's open declaration about reshaping courts with progressive judges to counteract "the MAGA imprint" to the blocking of Merrick Garland and rushed confirmation of Amy Coney Barrett, judicial appointments have become naked power grabs rather than thoughtful selections based on legal qualifications. The consequences play out in inconsistent rulings that seem to track political affiliation more than legal principles—blocking Trump's travel ban in 2017 and striking down Biden's student loan forgiveness in 2023. Each situation reverses which side celebrates judicial intervention and which side condemns it, reinforcing public cynicism about courts as political actors.

Solutions exist but require genuine commitment to institutional health over partisan advantage. Term limits for justices, stronger ethics rules, greater transparency in proceedings, and potentially expanding lower courts all offer paths toward rebuilding legitimacy. As Justice Frankfurter wisely noted, the judiciary "possessed of neither the purse nor the sword, ultimately rests on sustained public confidence in its moral sanction." That confidence is fraying—but together, we can restore it. Subscribe now to join our ongoing exploration of how to preserve the integrity of America's judicial system for generations to come.

For more information about our podcasts, see our website at www.Great-Thinkers.com

Speaker 1:

Welcome to Restoring Justice, a special series from Conversations with Great Thinkers. I'm Jim Lanchi, and today we present a special extended episode that combines two closely related themes from our series the growing politicization of the federal judiciary and the decline of public trust in its legitimacy. In recent years, the American people have witnessed what can only be described as a tectonic shift in how judges are appointed and how courts are used or weaponized, and how the legitimacy of our entire judicial system is called into question. From Senate standoffs to strategic retirements, from emergency rulings to shadow dockets, the judiciary is increasingly entangled in the political power games of our era. In today's episode, beyond the Bench, politicization, public Perception and the Crisis of Judicial Trust, we'll explore how we got there, why it matters and what can be done to restore confidence in what was once considered to be our most trusted branch of government. Let's begin with a headline that captured national attention. With a headline that captured national attention Senate Majority Leader Chuck Schumer's 2023 declaration that the Democrats would seek to reshape the judiciary by confirming progressive judges to counteract what he called the MAGA imprint of the Trump years. It wasn't the first time partisan motives shaped judicial appointments, but rarely have they been stated so openly.

Speaker 1:

The federal judiciary is designed to be independent and impartial, yet over the last two decades, we've seen both parties treat judicial nominations and appointments as zero-sum battles. Consider the blockade of Mayor Garland's nomination in 2016,. And then consider the rapid confirmation of Amy Coney Barrett just weeks before the 2020 election. These actions weren't about qualifications. They were about power. Judges are no longer simply referees. They are perceived as players, as ideological warriors in robes in. The Supreme Court has dropped to its lowest level in over 50 years, with fewer than 40% of Americans say that they have a great deal or even a fair amount of confidence in the court. Even more troubling, americans increasingly view the court as a partisan body. In the words of retired Justice Stephen Breyer, if the public sees judges as politicians in robes, its confidence in the rule of law will be seriously eroded. Let's take a closer look at how this politicization plays out in practice. Consider the 2017 travel ban case. Lower federal courts across the country blocked the Trump administration's executive orders.

Speaker 1:

Critics celebrated the judiciary as a firewall against executive overreach. As a firewall against executive overreach. Supporters, however, cried foul, accusing Obama judges of weaponizing the bench to undermine an elected president's authority. Now fast forward to 2023 rulings on student loan forgiveness, where conservative justices struck down President Biden's forgiveness program, citing statutory overreach. Supporters saw a reaffirmation of the separation of powers, while detractors saw judicial activism that prioritized ideology over fairness.

Speaker 1:

When courts alternate between blocking and advancing presidential agendas based not on law but on ideology, public cynicism grows. It's no surprise that terms like judge-shopping or shadow-docket or partisan injunctions have entered the mainstream lexicon. It raises a very vital question Are we electing presidents to govern or are we electing presidents to appoint judges who will govern in their stead? Trust is the currency of judicial legitimacy. When the public no longer believes that courts are interpreting the law only enforcing partisan ideology, our entire system is at risk. A 2024 Gallup poll found that only 38% of Americans trust the Supreme Court a great deal, and that's down, as I've said before, almost 62% from just a decade ago. Why does this matter? Because courts don't command armies or control budgets. Their only power is persuasive authority, a power rooted in the belief that rulings are fair, principled and grounded in law. Consider Brown v Board of Education, a landmark Supreme Court case in 1954. That ruling succeeded because Americans believed in the moral and constitutional authority of the court. Could a similarly transformative ruling succeed today with the same level of respect.

Speaker 1:

Legal scholars like Richard Fallon have warned that perceived judicial illegitimacy weakens not only the court but the rule of law itself, because when judges are seen as politicians, because when judges are seen as politicians, rulings are obeyed not out of respect but out of fear or worse, they're ignored altogether. So what can we do about this? Well, let's look at some proposed reforms, each of which deserves serious consideration. The first is term limits for Supreme Court justices. This is a popular proposal that would institute 18-year staggered terms, ensuring that each president gets two nominations per term. This would reduce the incentive to appoint young justices for maximum political gain. A second proposal involves stronger ethics rules. Recent headlines have revealed ethical lapses by justices who failed to disclose luxury trips, real estate deals and political donations. Requiring justices to follow a clear, enforceable code of conduct like all other federal judges would be a powerful step.

Speaker 1:

Next, look at transparent judicial review processes. That is, proposals to televise oral arguments and publish all rulings in a timely fashion, and to limit the use of unsigned shadow docket rulings would make the judiciary far more transparent and less prone to backroom influence. And lastly, let's think about rebalancing the courts. Some have suggested that expanding the number of lower federal judges to alleviate case overloads and reduce the opportunity for political manipulation could work to the benefit of the judicial system. Others call for jurisdiction stripping, meaning limiting what kinds of cases courts can hear, but such proposals walk a tightrope between accountability and constitutional crisis. Ultimately, no single reform will solve the problems that the judiciary is involved in at the present time. What's required is a broader cultural shift, a renewal of civic responsibility and respect for the judicial process, based on well-considered reform.

Speaker 1:

Let's look at a simple example that's been a flashpoint in the judicial executive tensions of late. Let's examine the development that most epitomizes the themes that we've explored in this podcast today, and that's the recent contempt ruling by US District Judge James Boasberg against the Trump administration. On January 16, 2025, judge Boasberg found probable cause to hold the administration in criminal contempt for violating his order to halt deportation flights to El Salvador. The administration's defense hinges on the argument that the deportation flights had already departed US airspace when the judge's order was issued, rendering the order inapplicable. Critics of the administration argue that this incident reflects a broader pattern of executive overreach and disregard for judicial authority. Supporters of the administration contend that the judiciary is overstepping its bounds, interfering with executive branch prerogatives in matters of national security and immigration.

Speaker 1:

Whichever way you view it, this incident underscores the delicate balance between the branches of government and the importance of maintaining respect for judicial authority to uphold the rule of law. Always remember that the Constitution diffuses power to better secure liberty. So if this is the case, where do we draw the line? Well, that's the question now facing Judge Boasberg as well as the nation. If a court order to halt deportation flights is ignored and the judiciary is powerless to enforce it, does that make the President untouchable in matters of enforcement, or does it confirm the fears of those who say the courts are reaching too far into executive prerogatives?

Speaker 1:

The tension between Marbury v Madison, that seminal case where the judiciary claimed the sole authority to interpret the Constitution and article 2, isn't new, but it does feel newly urgent. Let me leave you with this justice. Felix Frankfurter once wrote the court's authority, possessed of neither the purse nor the sword, ultimately rests on sustained public confidence in its moral sanction. That confidence is fraying, but it's not gone. Restoring trust in the judiciary doesn't require perfect judges, but it does require principled judges. It doesn't demand agreement on every ruling, but it does demand belief that the process is fair, independent and guided by law rather than politics. As we continue this series, we'll explore deeper reforms, historical analogs and bold ideas for ensuring that our courts remain what they were meant to be, and that is the last line of defense for the liberty of our nation and the rule of law.

Speaker 1:

I'm Jim Lanshey, and this has been Restoring Justice. For more episodes and resources, visit wwwgreat-thinkerscom or listen to us on Apple, spotify, amazon Music, youtube or wherever you get your podcasts. You, you, you, you.

Speaker 1:

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