Highly anticipated SCOTUS decision briefly posted to court’s website before it was removed
'Loss of trust': Growing chorus of federal judges speak out against 'out of step' SCOTUS
One of the most consequential Supreme Court decisions expected this term was momentarily posted to the Court's website before it was promptly taken down.
Bloomberg first reported that the decision in a major abortion-related case briefly appeared on SCOTUS' website, in which it appeared as if the Court would allow for emergency abortions to be performed in Idaho despite the Gem State's ban on abortions. The author of the opinion and a breakdown of how individual justices voted on the decision remains unknown.
In the cases, Moyle v. United States and State of Idaho v. United States, justices are expected to dismiss the case brought by the plaintiff as "improvidently granted." This means that Idaho's challenging the application of the Emergency Medical Treatment and Labor Act (EMTALA) against its own abortion ban would mean that the existing federal law supersedes state law.
While the brief posting of the Idaho abortion decision may not have been the final opinion, justices may have sided with the U.S. government based on the Supremacy Clause. Article VI, paragraph 2 of the Constitution explicitly instructs states that their laws may not interfere with federal law, and that when the two clash, federal law will be prioritized.
Federal judges appointed by both Democratic and Republican presidents are becoming increasingly more vocal in their opposition to the Supreme Court of the United States (SCOTUS).
Multiple judges and legal experts told Newsweek that they have lost confidence in SCOTUS — not just in its ability to objectively interpret how the Constitution should be applied to current legal matters before the Court, but also in its ethical standing. David S. Tatel, an appointee of former President Bill Clinton who served on the DC Circuit U.S. Court of Appeals (the nation's second-highest court) for three decades, wrote in his memoir that he finally retired in January of 2024 due to SCOTUS' "low regard" for traditional jurisprudence.
He's not alone. Tatel is one of at least three judges who offered a strong rebuke of the Supreme Court recently. In a May Slate interview, Hawaii Supreme Court Justice Todd Eddins, who was appointed by former Democratic Governor David Ige, slammed the justices for being "incredibly dishonest about how law and facts are cherry-picked." The same month, U.S. District Judge Carlton Reeves, an Obama appointee, also hit the court for its qualified immunity doctrine: In a ruling on a false accusation case in Mississippi, he wrote that the doctrine, established by the Supreme Court and which protects state and local officials from individual liability, was "an unconstitutional error." Both Eddins and Reeves are sitting judges.
"My views, I think, are widely shared throughout the judicial system," Tatel told the outlet. "Obviously, there are people who don't agree with them, but there are, I can assure you, a large number of judges who will not find anything I've said in this book surprising."
Jennifer Ahearn, senior counsel for the Brennan Center's Judiciary Program, said it's "pretty remarkable" that some judges are choosing to speak out, given how "unusual" it is for judges to speak outside of their work.
"I suspect that, frankly, that's the tip of the iceberg," Ahearn told Newsweek. "If a few judges are willing to stick their head above the parapet, then probably a lot of other judges also feel the same way and just aren't in a position to do that."
Alex Badas, an assistant professor specializing in judicial politics at the University of Houston, told Newsweek that the criticisms reflect a growing polarization of the judiciary and a general dissatisfaction with the Supreme Court's conservative supermajority.
"Before, when the court was more balanced, there existed somewhat of an equilibrium. Conservatives would win some major cases, and liberals would win some major cases, too. So, anger toward the Supreme Court would not build up to the point where sitting judges would feel comfortable speaking out against the court," Badas said. "That equilibrium does not exist now."
Given this polarity, some conservatives have dismissed critiques from liberal judges, like Tatel, Eddins and Reeves, arguing that their disagreement is with the outcome of the court's rulings and the bench's recent shift to the right.
But Tatel said his disapproval is "about the act of judging. It's not about the results. It was one thing to follow rulings I believed were wrong when they resulted from a judicial process I respected," he wrote in his memoir. "It was another to be bound by the decision of an Institution I barely recognized."
U.S. Circuit Judge Kevin Newsom, a Trump appointee, also knocked the Supreme Court in a February speech at a symposium hosted by the Harvard Journal of Law & Public Policy. Newsom took issue with how the current bench has relied on historical "tradition" to justify its landmark rulings, an approach that the federal appeals judge said risks leaving "too much to individual judges' discretion."
The People Concur
The judiciary's increasing displeasure with the Supreme Court comes as public opinion of the court remains at an all-time low. A 2023 Gallup poll showed that only 41 percent of U.S. adults approve of how the court is handling its job, a sign that the Supreme Court has struggled to bounce back from its record low of 40 percent approval in September 2021. The court's rating fell to that devastating low after it declined to block a controversial Texas abortion law, a move that has been seen as a precursor to its 2022 decision to overturn Roe v. Wade. Prior to September 2021, the court enjoyed positive approval, seeing 58 percent support in July 2020.
The growing disapproval is both a response to the court's recent decisions and part of a greater trend that's been seen over the past two decades. Even though the Supreme Court's approval dropped 9 percent after its ruling in the controversial case of Bush v. Gore in December 2000, it still sat at 59 percent in January 2001. Support also bounced back less than six months later, returning to 62 percent in June of that year. And despite the court shifting right, even Republicans are losing trust in the Supreme Court. An Ipsos poll conducted in June found that just 52 percent of Republicans said they trust the justices "a great deal" or "a fair amount," a 14-percent drop from July 2023.
That same poll found that 48 percent of Americans continue to trust federal judges and 49 percent say they trust state court judges, but some worry that could change because of the Supreme Court. Retired Connecticut Superior Court Judge Thomas Moukawsher told Newsweek the loss of trust in the judiciary as a whole has "trickled down from the top."
As retired U.S. District Court Judge Paul Grimm, an Obama appointee, told Newsweek, "It is absolutely critical that the public has faith and confidence in the judiciary, and what that means is that every judge—whether it's a trial judge or appellate judge or Supreme Court justice—they have to recognize that they live in a glass house and that everything they do is subject to personal scrutiny."
Conservative judges have also been questioning SCOTUS' legal expertise. J. Michael Luttig, who was appointed to the 4th Circuit U.S. Court of Appeals by former President George H.W. Bush, is an outspoken critic of the Court's six-member conservative majority. After SCOTUS issued a writ of certiorari for former President Donald Trump's claim of absolute criminal immunity, Luttig blasted the Court and said he was "profoundly disturbed" by its partisanship.
"I believe it is now likely either that Trump will get elected and instruct his attorney general to drop the charges, or that the Supreme Court will grant him immunity from prosecution," Luttig told the New Republic's Greg Sargent in April. "The conservative justices’ argument for immunity assumes that Jack Smith’s prosecution of Trump is politically corrupt and seeks a rule that would prevent future presidents from corruptly prosecuting their predecessors."
Dan Urman, a law professor at Northeastern University who specializes in the Supreme Court, told the outlet that SCOTUS' poor reception by the nation's best legal minds doesn't bode well for an institution that is wholly dependent on its perceived legitimacy.
"The court is out of step with public opinion in a variety of ways—especially abortion [and] gun rights—and this term, we might see the justices tack back to the middle on these issues, [like] mifepristone and keeping dangerous people from possessing weapons," he said.
SCOTUS is due to finish its current term by the end of the week, with major decisions still pending like Trump's immunity claim, and a January 6 insurrectionist's challenging of the legality of a charge against him for corruptly obstructing an official proceeding. If SCOTUS rules in the plaintiff's favor in that case (Fischer, Joseph W. v. United States), it could strike two of the four charges that Department of Justice special counsel Jack Smith indicted Trump on in the D.C. election interference case.
If SCOTUS upholds the D.C Circuit's prior decision that Trump does not have absolute broad criminal immunity, U.S. District Judge Tanya Chutkan would be free to schedule a trial date for the case, which could be in late September or early October. Alternatively, the Court may end up sending the immunity decision back to the lower courts to answer procedural questions, almost assuredly delaying the case until after the election.
A Redfield & Wilton poll conducted exclusively for Newsweek found that 4-in-10 voters say the Supreme Court will be "extremely important" in determining how they vote in the 2024 election. Another 3-in-10 said it was "moderately important" and about 2-in-10 said it was "somewhat important." Only 5 percent of voters say the court does not matter at all to their vote.
This year's presidential candidates already know the Supreme Court will be top of mind when voters head to the polls in November.
Biden delivered a stark warning in early June about what the election means for the court, saying that he expects the 2024 winner will likely have the chance to fill two vacancies on the Supreme Court—a decision the president said would be "one of the scariest parts" of a second Trump term.
"He's going to appoint two more [justices] flying flags upside down," Biden said at the Los Angeles fundraiser.
