For many foreign legal observers, the 2021-2022 term of the Supreme Court of the United States (SCOTUS) is needlessly tumultuous and deeply concerning. In May 2022, a draft of a majority opinion was leaked to the public — a very rare event with only one known modern precedent — and in June 2022, the Court released several decisions which radically departed from long-standing precedent or struck down laws and regulations that had been on the books for a long time, in one case for nearly a century.

Moreover, the language used by the court in its majority decisions was often unguarded and blunt, without a trace of the careful prose conventionally used to reconcile a decision with prior court pronouncements. In short, the decisions were revolutionary rather than evolutionary, and the judgments were written accordingly by judges appearing all too impatient to change the law.

The fact that opinion polls show that the Court’s recent decisions are unpopular is not in and of itself deeply concerning. Courts often make unpopular decisions. This is generally accepted by the public provided that the decisions are perceived to be the fruit of an impartial reasoned exercise. And this is where the problem lies. A large proportion of the US public and their elected leaders, particularly at state and local levels, no longer believe that the scales of Themis at the highest court are level. Rather, they believe that after decades of relentless effort, a disparate coalition of single-issue conservatives has been able to appoint to SCOTUS a majority of right-wing ideologues. That this was done in plain sight for all to see, with the majority of the citizenry unable to prevent it, has engendered frustration among many, with some even advocating packing the Court, i.e., increasing the number of judges and appointing more mainstream judges.

For an example of an elaborate and lengthy legislature and court-packing example, one can turn to South Africa and its constitutional crisis of the late ’40s and ’50s. In that instance, the central government had to increase the size of the South African senate as well as the Appellate Division of the Supreme Court (going from six judges to eleven) in order to restrict voting rights in the Cape. This unfortunate saga is often referred to as the Coloured Vote Constitutional Crisis.

The perception that SCOTUS is not impartial will be corrosive and degrade its authority. SCOTUS justices generally sit for a long time. The impact of the current conservative 6-3 majority will be generational and wide ranging. Here are three likely demographic and economic consequences:

1. Since SCOTUS, like most courts, must act through others, the implementation and enforcement of unpopular decisions are likely to be uneven, ranging from the robust to the laissez-faire. In other words, the personal impact of a decision will likely depend upon where one lives. For example, states and local governments may for a variety of reasons, including financial, refuse to enforce decisions that they perceive as ill-advised or illegitimate, thus effectively creating sanctuaries. This has already been done by cities concerning issues such as the deportation of undocumented immigrants.
2. Americans are known for their willingness to move within the US, whether for studies, work or retirement. Close to 10% of the US population changes residence each year. This internal mobility is a great economic strength, allowing human resources to be allocated where they are most needed. However, the legal balkanization of the US will impact internal mobility, with some individuals refusing to move to certain states whilst others are desirous to leave the states they reside in. This is likely to entrench the red state-blue state divide in the US, with states on both sides of the divide becoming less diverse over time.
3. Economic consequences may go further than attracting talent. Pension and other funds may boycott investments in certain states. Consumers in one state (and perhaps state and local procurement agencies themselves) may likewise shun products or services from another state.

A more immediate consequence of the loss of impartiality of SCOTUS is the danger to the members of the Court. In the US, as elsewhere, political actors may be subjected to violence. Already some US lower court judges and their families have been targets of assassinations and other violence. Whilst protective measures can be taken, these are not infallible and the resulting violence can exacerbate an increasingly unstable sociopolitical atmosphere.