William C. Duncan: Utah’s only Supreme Court justice can help us with SCOTUS legitimacy

William C. Duncan | The Sutherland Institute

A century ago, in October 1922, George Sutherland became the only Utahn to ever serve as a justice on the U.S. Supreme Court. Serving 16 years, Sutherland was on the court when it faced a significant test of its independence. Then, as today, its legitimacy was publicly called into question. The lessons of Sutherland’s experience still apply today.

In 1937, upset with court decisions invalidating some of his congressionally-enacted economic reforms, President Franklin Roosevelt announced a plan to modify the composition of the court by adding six new justices for any of the currently-serving justices (like Sutherland) older than 70. The plan ultimately failed.

Today, the U.S. Supreme Court has again become a focus of criticism, with Gallup reporting Americans’ confidence in the court at a “historic low.”

Perhaps that polling result should not be surprising. If Congress enacts or the president champions an unpopular policy, their popularity and polling suffer. So, why would the Supreme Court be any different?

The problem is that the court is not an elected representative branch of government that is designed to pursue popular opinion. Its constitutional role is to apply existing laws made by the people themselves (like the U.S. Constitution) or their representatives to ensure that the law is well understood and consistently applied.

Retired Utah Supreme Court Justice Thomas Lee recently noted that justices “take an oath to be objective, to be neutral, and we have to show our math when we make our decisions.” The court’s written opinions are their work product, and they allow future courts to assess the accuracy of a prior court’s decision and offer corrections.

If the people or their representatives believe the court has made a mistake in its interpretation of a provision, that mistake will be evident in the court’s written work. The Constitution and related legal processes provide solutions when this occurs: a law can be changed by Congress, the Constitution can be amended (though that is a purposely difficult), or the court can rethink a decision, as it did in Dobbs.

So, although it may be common, political discussions about the Supreme Court’s work that mirror discussions of the other branches of government are likely to be misleading and harmful.

This is because in some cases, the court must act to invalidate laws that may be popular because they are inconsistent with our most basic values as expressed in the Constitution. Before joining the court, Sutherland described this: “‘The great purpose of the Constitution is to ... preserve the rights of the citizen by the definite and unchanging law of the land, instead of leaving him at the mercy of the transitory opinions of a constantly changing majority.” While serving on the court, he practiced what he preached. He authored sometimes unpopular, but constitutionally correct, majority opinions regarding women’s equality before the law and African Americans’ right to legal representation.

If the court is to protect the constitutional rights of societal minorities from a popular and unconstitutional action, it requires basic respect for the court’s role.

This does not mean the court is always right. Much the opposite. But the court has historically shown an ability to correct its mistakes. Abandoning the court’s constitutionally prescribed role of faithfully applying the law so that it can better reflect popular opinion is a risky and potentially dark road for Americans’ civil liberties.

That is also a reason why we should think twice before making uninformed, distorted or misleading accounts of the U.S. Supreme Court and its role. As George Sutherland recognized, safeguarding democracy requires protecting the respect required for the court to perform the role assigned to it by the Constitution.

William C. Duncan is the religious freedom policy fellow at Sutherland Institute, a nonprofit conservative think tank in Salt Lake City.