Abstract
Public hand wringing over waning faith in the Supreme Court, this Essay contends, mistakes symptom for cause. The real crisis is not distrust but the Court’s persistent failure to earn trust in the first place. Trust is a feeling; trustworthiness is a record. This Essay adopts a common understanding of trustworthiness that evaluates the demonstrated ability of the trusted party to protect the vulnerable trusting parties, and analyzes the Court’s trustworthiness against that yardstick. From Dred Scott, Plessy, and Korematsu to modern “shadow docket” interventions and undisclosed donor funded travel, the Court has too often shown itself untrustworthy by this metric. Its ethical controversies and reflexive defensiveness sharpen the point: a tribunal that shields itself from scrutiny while wielding final authority over constitutional meaning has offered scant evidence that it deserves the confidence it demands. This Essay engages in a three stage inquiry. First, drawing on political theory and social psychology, it disentangles the concepts of trust, distrust, and trustworthiness, proposing a metric rooted in transparent reasoning, procedural fairness, and ethical rigor. Second, it applies that metric to the Court’s historical and contemporary record, demonstrating how signature failures—and the Court’s traditions of opacity, privilege, and self-aggrandizement—have produced a deep reservoir of suspicion among vulnerable communities. Finally, it confronts the self reinforcing nature of distrust and assesses proposed reforms: intellectual humility, public apologies for past harms, external ethics oversight, and greater daylight on the shadow docket. While each could cultivate genuine trustworthiness, the Court’s institutional culture renders such shifts improbable. The Essay thus reframes legitimacy debates, insisting that the path to restored confidence runs not through exhortations to “trust the Court” but through the Court’s willingness to commit to the work of demonstrating its own trustworthiness.
Recommended Citation
Brandon J. Johnson,
A Judiciary without Trust?,
104 Neb. L. Rev. 5
(2025).
Available at: https://digitalcommons.unl.edu/nlr/vol104/iss1/3