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In Government We Trust

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Benjamin Paley
May 27, 2022

The recent leak of the U.S. Supreme Court’s (Supreme Court) draft opinion in Dobbs v. Jackson Women’s Health Organization diminished trust in the U.S. Supreme Court.

But what constitutes trust in government institutions? And how can a government institution subsequently rebuild trust with the people?

In this article, I attempt to briefly answer these questions. I start by describing the concept of trust in government. For support, I cite political science, political theory and public administration articles. Then, I cite examples from the recent history of distrust in government. Finally, I provide recommendations for rebuilding trust in the Supreme Court.

What’s Trust Got To Do With It?

Philosophers and political scientists have attempted to define trust in the government context. The consensus appears, as stated by Friedel Weinert in his 2018 article, “The Role of Trust in Political Systems. A Philosophical Perspective, that people trust their government to guarantee their well-being. Additionally, Marc Hetherington and Thomas Rudolph, in their 2015 article, “Why Washington won’t work: Polarization, political trust and the governing crisis”, state that trust is “a barometer” of citizens’ feeling[s]” about “the overall fairness and competence of government”.

What happens, however, when the people lose trust in the government? According to Weinert, even if the people lose trust in the government, if the government is the sole institution providing that benefit, they continue relying on the government. If, however, an alternative institution exists, then the people will use the alternative.

Brexit is a perfect example of this. In 2015, British voters overwhelmingly voted to leave the European Union. British citizens lost trust that institutions in the European Union had their best interests. This distrust had been building up for some time and British citizens wanted the European Union to change. However, this never happened. The distrust reached a breaking point, and the people decided to go with an alternative.

Trust in the Supreme Court

People turn to the courts to resolve disputes. Besides, the courts, there exists no other government mechanism to adequately resolve disputes. Therefore, trust in courts is paramount. According to a 2020 report published by the Institute for the Advancement of the American Legal System titled, Public Perspectives on Trust & Confidence In The Courts, “issues like racial and gender bias, socioeconomic bias and perceived politicization of the judiciary impact people’s views” of the court.

The Supreme Court, by its very nature, is nonpolitical. Yet, to many, the actions of the Supreme Court appear political. This is especially true when a case is not decided the way certain people would have hoped. Understanding this dynamic is crucial to understanding why many sources say people today distrust the Supreme Court.

These sources say that people today feel as though the Supreme Court does not represent the interests of the people and thus, as Weinert stated, people lost trust in the Supreme Court. Recently, the circumstances around the nominations of Justice Brett Kavanaugh, and Justice Amy Coney Barrett further hindered the people’s trust in the Judiciary. Second, the controversy surrounding Justice Clarence Thomas also hindered distrust in the Supreme Court. And third, the prior and long-standing controversy over cameras in the Supreme Court.

Suggestions for Remedying the Trust Problem

Currently, there exists no institutional alternative to the Supreme Court that could take its place. Therefore, the next step is to determine how the Supreme Court should respond to the public’s distrust in order to rebuild it. Unfortunately, no easy answer exists. I provide a few suggestions, but this list is not by any means comprehensive.

  • Cameras in the Supreme Court: Currently, oral argument sessions are audio recorded but no video recording is made. Attempts have been made in the past to allow video cameras in the Supreme Court, however the consensus amongst the justices is to stay away from that because video cameras would distract from the Supreme Court’s work. Viewers would focus on the expressions of the justice and not the substance of what they are saying.
  • Continued live streaming of oral argument sessions (no video): COVID-19 forced the Supreme Court to close the doors of the physical building and oral arguments moved to completely remote. Customarily, oral arguments were recorded and posted later the same day on the Supreme Court website. Because COVID-19 forced the Supreme Court to work remotely, oral arguments were done virtually and livestreamed to the Supreme Court’s website. As a result, anyone could listen live to oral arguments. Additionally, oral arguments were recorded simultaneously.
  • A judicial Code of Ethics for the U.S. Supreme Court: Recently, there have been calls for a judicial code of ethics that binds the Supreme Court. Currently, there is none and the only device holding the justices accountable is impeachment.

Author: Benjamin Paley is a board member of the South Florida Chapter of the ASPA. He graduated in 2018 from Florida Atlantic University with a Master of Public Administration degree. He currently studies law at Nova Southeastern University. Email: [email protected].

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