THURSDAY December 7, 2023 |
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The Supreme Court delved into two high-profile cases this week with potentially far-reaching implications. On Monday, justices heard arguments in a case on a bankruptcy settlement for Purdue Pharma that would determine whether the Sackler family can be shielded from future civil lawsuits related to the opioid epidemic. The following day, the court considered another case that could rewrite the tax code by determining whether it is constitutional to tax unrealized income. Both of these cases hinge on very technical legal considerations related to bankruptcy and tax law—hardly thrilling subjects. But they involve issues that stir very strong emotions: the opioid epidemic and taxes on the wealthy. The outcomes have the potential to further define public opinion of the court, which in turn may affect perceptions of its legitimacy. Public approval of the Supreme Court has cratered in recent years, a trend that only intensified after the court’s conservative majority overturned Roe v. Wade last year. Only 44 percent of Americans had a favorable view of the Supreme Court this year, according to the Pew Research Center, a drop of 26 percentage points since 2020. A Gallup survey released in the fall of 2022 found that only 47 percent of Americans had trust in the judicial branch, and a record-high 42 percent said the Supreme Court was too conservative. Experts warn that this apparent lack of confidence threatens to erode the legitimacy of the court—and its decisions. Perception of the Supreme Court as a political body is not new, said Logan Strother, an associate professor of political science at Purdue University who has written on this subject. For example, in the wake of decisions on the Affordable Care Act roughly a decade ago, people’s opinions of the court were influenced by whether they approved or disapproved of the law. The difference now is in the makeup of the court: In previous years, more moderate conservative justices acted as swing votes, occasionally granting “wins” to liberals in significant cases. |
“We’re in a different world today, where you have a very solid conservative majority, and it’s really unlikely that the liberal side will be winning high-profile cases in the foreseeable future,” Strother explained. “In the last couple of decades, we’ve had off-setting wins and losses. Today we’re going to see a steady march of conservative wins … if you’re not getting wins, there’s nothing that’s going to buoy support for the court.” There is particular frustration among Democrats in Congress about the recent activity of the Supreme Court, and these decisions could further cement their concerns. Senator Peter Welch, a Democratic member of the Senate Judiciary Committee, argued that issues of taxation are the purview of Congress, not the courts. “It’s a legislative decision—what gets taxed, how it gets taxed—and then voters have the ability to demonstrate their displeasure or support in elections,” Welch said. “The court has consistently been overreaching and interfering with what are legislative policy decisions and imposing its own policy preferences.” How people feel about the outcomes of the cases will depend on media framing as well. For example, the bankruptcy settlement reached by Purdue Pharma would dedicate billions of dollars to addressing the opioid crisis. But the wealthy Sacklers are hardly popular, thanks to their active role in developing and promoting the use of opioid medication despite known risks. If a decision upholding the settlement is framed primarily in terms of shielding members of the Sackler family from future liability, it could anger those Americans who already feel betrayed by the Supreme Court. Strother’s research has also found that if a person questions the legitimacy of the court, they are more likely to support reforms or policy changes, such as imposing term limits or adding justices. In simple terms, agreement or disagreement with the court’s rulings contributes to perception of its legitimacy. If a person agrees with a ruling, they are more likely to feel as if the court is acting fairly; if they disagree, they will think the decision, and by extension the court itself, is driven by legal rather than political considerations. Moreover, the court is more perceptive—and more sensitive—to public opinion than you might imagine. As TNR contributor Simon Lazarus has argued, the court’s vulnerability in this regard has seen liberal pressure campaigns shape the court’s decision-making in significant ways. One Republican who approves of the court’s recent conservative rulings, Senator Thom Tillis, told me that he believed the Supreme Court has been “balanced,” but acknowledged “it’s all in the eye of the beholder.” “Politicizing law enforcement, politicizing the FBI, politicizing the courts are, I think, unhelpful,” he said. |
Vibe check: Impeachment update |
Each week, I provide an update on the vibes surrounding a particular policy or political development. This week: the latest on the House impeachment inquiry. |
The House is expected to vote next week to formally open an impeachment inquiry into President Joe Biden. At first glance, this is a redundant move, given that former Speaker Kevin McCarthy unilaterally announced the beginning of the inquiry earlier this fall—just as then-Speaker Nancy Pelosi had done when opening the inquiry into President Donald Trump in 2019, a decision much criticized by Republicans at the time. But GOP lawmakers contend that the Biden administration’s intransigence has forced their hand to call a formal vote: Following in the footsteps of Trump, the White House has refused to abide by congressional subpoenas, arguing that the inquiry is illegitimate because it did not receive a vote in the House. But there’s another reason the formal vote is in the offing now but wasn’t back in September. McCarthy had launched the inquiry unilaterally because of skepticism from some Republicans who represent swing districts, or districts that Biden won in 2020; simply announcing the process shielded them from a potentially difficult vote. But these Republicans may not have such compunctions now, as they can cite the Biden administration’s recalcitrance as their reason to vote to open an inquiry next week, when they may not have done so before. “You would have thought they would have stepped up and worked with us, and not basically in many ways played chicken, saying, ‘We’re gonna force you to do an inquiry vote,’” said Representative David Schweikert, who represents an Arizona district that Biden carried. When asked whether some Republicans would feel any trepidation about authorizing an inquiry, Schweikert replied: “I think if the White House had not said, ‘Screw you, you don’t have legal authority,’ you might have had more of that. But they set this clock in motion.” The GOP posture, including deciding to hold a full vote after White House stonewalling, echoes the process leading to the 2019 impeachment of Trump on charges of abusing power and obstructing Congress. Indeed, because so many House Republicans believe the first impeachment of Trump was a politically motivated smear campaign, there is an apparent eagerness to return the favor for Biden. (The House committees conducting the inquiry have yet to produce any evidence of wrongdoing by Biden in connection with the business practices of his son Hunter.) |
A formal vote to open an impeachment inquiry would lend the investigation some legal oomph. A special counsel for Biden wrote in a letter last month that the House could not “claim the mantle of an ‘impeachment inquiry’” without such a vote. On Wednesday, Speaker Mike Johnson said that he expected unanimous support from House Republicans in opening an inquiry. “This is a vote to continue the inquiry of impeachment, and that’s a necessary constitutional step. I believe we’ll get every vote that we have,” he said. However, not every House Republican is convinced that a vote to open an inquiry is the way to go. Representative Ken Buck said that he did not believe a vote was necessary, because the process had already begun. “I wasn’t in favor of it when Kevin [McCarthy] brought the issue, and I haven’t seen any evidence to suggest that there’s a link between Hunter Biden’s activities and Joe Biden,” Buck told me. “There’s no need to call it an impeachment inquiry either. You can just move forward with the Oversight [Committee] investigation that’s ongoing.” Buck, who slammed GOP efforts to open an inquiry in a September op-ed, has a decidedly independent streak—he voted to oust McCarthy and then opposed the nomination of Representative Jim Jordan as speaker. He argued that the White House did not have “a valid argument” for avoiding participation in the inquiry, but noted that several committees are already investigating Biden. Representative Brian Fitzpatrick, whose Pennsylvania district supported Biden in 2020, said that he still needed to discuss the issue with party leaders, to determine whether a full vote on an inquiry is necessary. “I’ve got no ax to grind. I’m not taking a partisan angle. I just want to get to the truth,” Fitzpatrick told reporters. “I need them to tell me, what are they going to get with [a full House vote] that they can’t get now?” |
Nobody plays a bad actress better than Natalie Portman, by Sam Adams in Slate Is the press ready for a second Trump term?, by George Packer in The Atlantic Timothée Chalamet, the boy king, by Alison Willmore in Vulture How millennials learned to dread motherhood, by Rachel M. Cohen in Vox What happened when the U.S. failed to prosecute an insurrectionist ex-president, by Jill Lepore in The New Yorker In Uvalde, students followed active shooter protocol. The cops did not, by Lomi Kriel and Lexi Churchill of ProPublica and The Texas Tribune, and Jinitzail Hernández of The Texas Tribune Chasing Jane Austen’s bad boys, by Kirsten Denker in The New Republic Fandom’s great divide, by Emily Nussbaum in The New Yorker (from 2014) (RIP Norman Lear) |
Want to have your pet included at the bottom of next week’s newsletter? Email me: [email protected]. |
Author’s note: This description was written by Rebecca Segers, who submitted the picture. The author presents the following without any additional commentary. Nepotism is the word for today, as Grace features her mother’s cat, Sir Duncan Crooktail First of His Name, the most perfect orange boy ever. Duncan was adopted at the tender age of 7, 8, or 9 according to Lollipop Farm in Rochester, New York, who also gave him the random birthdate of March 23, 2015, which suggests far more specificity than they were actually willing to commit to. |
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