By Kelly Shackelford, President, CEO and Chief Counsel
In the game of football, a Hail Mary pass is a desperate, last-ditch attempt to salvage a win by throwing a long pass downfield in hopes it will be caught for a touchdown. It rarely succeeds.
In early May, an unprecedented leak of a Supreme Court draft opinion set off roiling left-wing protests when it indicated the infamous Roe v. Wade ruling on abortion might be reversed. The leaked draft opinion reignited a moribund movement to pack the Supreme Court with left-wing partisans and give Democrats full control of all three branches of the federal government.
But a new poll shows these left-wing groups, anticipating a decision they oppose, don’t have a prayer of success. Their other plays to date, such as last year’s Presidential Commission on the Supreme Court, have also failed to put points on the board. A renewed effort to pack the Court now is a political Hail Mary, if ever there were one.
As reported in The Wall Street Journal, a Mason-Dixon poll of registered voters commissioned by First Liberty Institute showed overwhelming opposition to court-packing, with 65% of respondents nationwide opposed and only 26% in favor. The poll showed that independent voters, by that same margin, were opposed—and Republicans, as expected, staunchly opposed. But even Democrats were evenly divided on the court-packing question, with 41% in favor and 40% opposed.
Whoever leaked the Supreme Court’s draft opinion last month opinion should have taken the time to ponder the consequences of such a myopic move—the first such naked disclosure for a pending case in modern Court history. Instead of sparking a shift in public opinion and political support for court-packing, the leak has backfired across the political spectrum.
The Mason-Dixon poll, conducted May 13-18, showed that only 19% of registered voters nationwide approved of the Court leak, with only 27% of Democrats and 22% of independents in favor. A whopping ninety-one percent of Republicans disapproved.
The Supreme Court leaker has also taken dead aim at the one thing the justices need the most from the American people: trust in the Court as an institution. As Alexander Hamilton famously argued in The Federalist No. 78, the justices do not have the power to even enforce their own decisions. Instead, they rely on unwavering public support for the rule of law that has undergirded American democracy since the Founding.
Nationwide, some 40% of registered voters have a less favorable view of the Supreme Court following the leaked opinion, with only 12% having a more favorable view. The Mason-Dixon poll showed that 69% of Democrats had a less favorable view of the Court—no surprise in light of the party’s aggressive advocacy for abortion on-demand and without limits. But 41% of independents also showed a less favorable view, a disturbing shift that may portend crumbling support for the Court’s work. That is not good for America.
Adam J. White, a senior fellow at the American Enterprise Institute, served on last year’s Presidential Commission on the Supreme Court of the United States. At the time, he summed up the risks involved in court-packing in a brief statement:
“To pack the Court would impair the Court, not improve it: destabilizing it, further politicizing it and complicating its basic work of hearing and deciding cases under the rule of law. …And one needs a willing suspension of disbelief not to see that court-packing would inaugurate an era of re-packing, destroying the Court’s function and character as a court of law.”
Exactly right. The desperate Hail Mary effort to pack the Supreme Court will fail again, just as it has failed in the past—leak or no leak. But the continued hammering at the public’s trust in the institution—its very source of legitimacy—has to stop.
Trust, once lost, is a very hard thing to regain.
Note: This article was first published on Newsweek and is re-published here with permission. The article presents the main points of an op-ed published in Newsweek. This work was authored by Kelly Shackelford. The full article can be found on the Newsweek website, here.