It’s also worth noting that the justices themselves are rarely better at public engagement than the institution. Their public appearances are generally limited to law-school lectures or presentations to various legal groups, with reporters often forbidden from filming them. Unless they are part of book tours like the one Breyer is currently on, the justices also almost never give interviews to print or broadcast journalists, even those who know better than to ask questions they won’t answer. If you were in high school when Chief Justice John Roberts joined the court in 2005, you probably never heard him say out loud more than the oath of office at presidential inaugurations before he presided over Trump’s first impeachment trial last year.
C-SPAN used to regularly survey the country for its views on the Supreme Court and the justices. Their poll found that at least half of Americans could not name a single justice from memory, with Ruth Bader Ginsburg only reaching 25 percent name recognition in the most recent survey in 2018. Those numbers are often used as a benchmark of Americans’ civic ignorance. But they may also reflect the justices’ failures to be known and understood by the American people on whose behalf they exercise the judicial power of the United States.
It goes without saying that the justices have obligations as judges to not, say, write newspaper op-eds about hot-button issues, or hobnob with people who have pending litigation before the court, or give freewheeling interviews on cable news about how they’ll decide future cases. No one can blame them for keeping a certain ethical distance from the ebb and flow of modern American life. I also don’t expect Justice Neil Gorsuch to start a podcast for movie reviews or for Justice Sonia Sotomayor to offer baseball commentary on ESPN, as much as I might personally enjoy both of those things.
More substantive recommendations for rebuilding public support would likely fall on deaf ears. Though the justices’ docket is almost entirely discretionary, they are probably unlikely to heed warnings against making sweeping rulings on major social issues that could further alienate or inflame Americans, especially through the shadow docket. Thomas and Barrett also appear unconcerned that they’re undercutting their claims of nonpartisanship by simultaneously taking public victory laps with Mitch McConnell. But if the justices are so alarmed with how the public sees them, maybe they should rethink whether one of the most important parts of our constitutional system should be so needlessly opaque.