The Fading Myth of Judicial Neutrality

Image via Brennan Center

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In his 1838 Lyceum Address, Abraham Lincoln warned that the greatest threat to American institutions would not come from foreign enemies, but from within. “If destruction be our lot,” he argued, “we must ourselves be its author and finisher.” Though Lincoln wasn’t referring to the Supreme Court, his warning applies with unusual precision to our highest court, an institution whose authority is respected only if we believe in it.

The Supreme Court has neither an army nor budgetary power, requiring it to rely on something far more fragile: the public’s confidence. Recently, that foundational confidence has come into increasing doubt.

According to the Pew Research Center, favorable views of the Supreme Court fell from roughly 70% in 2020 to 48% by 2022. More recently, a 2025 Reuters/Ipsos poll found that 58% of Americans believe Supreme Court justices aren’t politically neutral. These numbers don’t reflect dissatisfaction with one particular ruling. Rather, they reflect a deep rupture in American trust for the judicial arm, which threatens the legitimacy of the Court and, by extension, the stability of American democratic institutions.

Americans are no longer asking whether the Court reaches the correct outcomes. They are asking whether the Court is neutral at all, and the answer increasingly appears to be no.

The idea of judicial neutrality depends on a simple premise: the Constitution provides rules, and judges apply them. If the law is clear, then outcomes should be consistent and independent of ideology.

But the Constitution is not a detailed legal code. Instead, it is a framework built on broad principles and terms, such as due process, equal protection, and cruel and unusual punishment. These ideas don’t define themselves, so our greatest legal minds interpret them. While great minds think alike, they often don’t conclude alike. 

Disagreements in the Supreme Court often stem from competing views about the role of government and the meaning of rights. Consider Kelo v. City of New London (2005). In a 5-4 decision, the Court held that the government could take private property for economic development under the 5th Amendment’s public use clause. Writing for the majority opinion, Justice John Paul Stevens concluded that economic development could qualify as a public use as it served a broader public purpose. In dissent, Justice Sandra Day O’Connor warned that “the specter of condemnation hangs over all property,” arguing that the ruling allowed governments to transfer land from those with fewer resources to those with more political influence. Both opinions invoked constitutional reasoning, yet they still reflected different visions of the relationship between private rights and state power.

A similar divide appeared in National Federation of Independent Business v. Sebelius (2012). In another 5-4 decision, the Court upheld the Affordable Care Act’s individual mandate, but only under Congress’s taxing power. In the controlling opinion, Chief Justice John Roberts rejected the government’s Commerce Clause rationale, writing that “the power to regulate commerce presupposes the existence of commercial activity.” Even while Roberts voted to uphold the law, he did so through a narrower reading of federal power than the Obama administration had urged. The disagreement was not about facts. It was about constitutional limits.

The justices’ disagreements aren’t random. In a paper titled “Judicial Common Space,” political scientists Lee Epstein, Andrew Martin, and their coauthors place justices on an ideological scale using the party of the appointing president and subsequent judicial behavior. The purpose of this research isn’t to claim that justices ignore the law, but to demonstrate that their underlying ideological commitments are consistent, measurable, and often predictive of how they will rule in closely contested constitutional cases.

If neutrality were truly achievable, the Court’s decisions wouldn’t align so consistently with the political identities of the justices. Yet, the process that produces those justices is itself openly political, with presidents nominating candidates whose judicial philosophies reflect their own priorities, shaping the Court’s ideological makeup for decades.

The Senate confirmation process reinforces this dynamic. As SCOTUSblog noted, Merrick Garland’s nomination expired after nearly 300 days without a Senate vote. By contrast, SCOTUSblog’s Barrett coverage documents how Amy Coney Barrett moved from nomination to confirmation in roughly a month, just before a presidential election. These were not neutral procedural choices. Instead, they were strategic political decisions designed to shape the Court’s ideological balance for decades.

Public opinion reflects this reality. In its 2024 courts survey, Gallup found that confidence in the judicial branch stood at 71% among Republicans but only 24% among Democrats. That 47-point gap is not the mark of a unanimously trusted institution.

Defenders of the Court argue that this critique goes too far. They correctly point out that legal doctrine, procedural rules, and precedent constrain justices. The principle of stare decisis exists precisely to promote stability by encouraging courts to follow prior rulings. They also note that justices do sometimes cross ideological lines, and that the Court “takes precedent quite seriously,” as Justice Amy Coney Barrett has argued publicly. Roberts’s vote in NFIB remains an obvious example. 

While constraints do exist, they have proven to be limited. The clearest example is Janus v. AFSCME (2018). In a 5-4 decision, the Court overturned Abood v. Detroit Board of Education (1977), a 41-year-old precedent that had allowed public-sector unions to collect agency fees from nonmembers. Writing for the majority in the official opinion, Justice Samuel Alito declared that “compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command.” Justice Elena Kagan, in her dissent, responded that the Court was “overthrowing a decision entrenched in this nation’s law” and accused the majority of “weaponizing the First Amendment.” This was not a minor technical correction. Instead, it was a direct reversal of precedent driven by competing constitutional philosophies about speech, labor, and the role of the state.

Even looking beyond ideology, neutrality is constrained by human factors. In an analysis of judicial bias, the State Court Report explains that judges are susceptible to the same kinds of cognitive biases and blind spots that affect everyone else, even when they sincerely believe themselves to be impartial. Assuming that judges can rise above ordinary limitations simply by virtue of office is just not true. Even with training, ethics, and institutional culture, bias can’t be completely erased.

The consequences of this reality have become increasingly visible. Trust in American institutions has significantly declined. In its institutional trust archive, Pew reports that only 22% of American adults trust the federal government to do the right thing. The Supreme Court is hardly exempt, with the majority of Americans holding unfavorable views. What makes the Court’s decline especially concerning is that it cuts directly against the one resource the judiciary cannot do without: public acceptance.

As Hamilton wrote in Federalist No. 78, the judiciary has “no influence over either the sword or the purse.” All the Court has is judgment, and even that judgment depends on a willingness to accept the Court’s decisions as legitimate. If that acceptance becomes conditional, decisions become political outcomes rather than binding constitutional rulings. 

So what should be done?

The answer is not to pretend politics can be removed from constitutional interpretation. It’s just simply impossible. A more honest response is to structure reform around the reality that the Court is both legal and political.

One serious proposal is the adoption of staggered 18-year terms. Norman Eisen and Sasha Matsuki of Brookings argue that term limits would reduce the randomness of vacancies, lower the stakes of each confirmation battle, and make the Court’s composition less dependent on timing, death, and strategic retirement. The Brennan Center similarly argues that regular turnover would reduce the perception that each vacancy is an existential political crisis. 

Other reforms focus on ethics and transparency, as proposed in the Supreme Court Ethics, Recusal, and Transparency Act. Clearer recusal standards, better disclosure requirements, and stronger norms around conflicts of interest, such as clear financial disclosure and expanded reporting of gifts, travel, and income, would not eliminate ideology. However, they would narrow the gap between immense judicial power and minimal judicial accountability.

Still, a policy more important than any single reform is honesty. Americans should stop talking about the Supreme Court as though it floats above politics in some pristine, robotic, constitutional realm. While it is a court which concerns itself with the law, it is also an institution shaped by political conflict, guided by judicial philosophy, and tasked with deciding the most contested questions in public life. Admitting that reality doesn’t weaken the Court. On the contrary, it strengthens public confidence, the bedrock of our Supreme Court’s authority.

Lincoln’s warning points to a basic truth about American institutions: they erode when the beliefs that sustain them begin to fail. The threat to the Supreme Court’s legitimacy is not that it has become political. The real threat is that the myth of neutrality has persisted for so long that its collapse now appears as a crisis. That crisis will not be resolved by clinging to a false notion. It will only be resolved by confronting the Court as it actually is. 

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This article was edited by Sidney Levitt and Mila Cabanlit.