Only 35% of Americans trust the US judicial system. This is catastrophic | David Daley

The US supreme court has been hijacked by the extreme right and corrupted to its core.

American oligarchs bestow millions in gifts and largesse on rightwing justices. The court’s conservative supermajority hands down deeply unpopular decisions that take away long-settled rights, concentrate power for themselves and their friends and grease the electoral rails for their party.

Sometimes, an insurrectionist flag waves in front of a justice’s home.

Now a legal system fashioned with Leonard Leo’s dark-money riches and led toward dishonor by John Roberts has received a damning verdict from the American people. According to a new Gallup poll, Americans have a historic lack of trust in the courts. In an era of little faith in institutions, confidence in the judiciary has fallen the fastest and the steepest during the 2020s.

This places America in uncharted territory – alongside dictatorships, banana republics and military juntas. Throughout modern international history, the collapse in judicial faith over the last four years can be compared with the faith lost in Syria between 2009 and 2013, the military takeover of Myanmar between 2018 and 2022 and the tumult in Venezuela from 2012 to 2016.

The numbers are staggering and historic. Only 35% of Americans have faith in the courts. That’s a record low. Numbers this resounding must cross party lines; while Gallup does not measure partisanship here, it is the first time ever that confidence in the judiciary is underwater among those who approve and disapprove of the nation’s leadership.

It’s not surprising that Americans have lost all faith in something as anti-democratic as an unelected body (with a majority appointed by presidents who lost the popular vote) granted lifetime fiefdoms to cast final judgement over acts of the elected branches, without any accountability or ethics code that might, for example, prevent them from taking luxury vacations paid by billionaire benefactors.

What is deeply frustrating is that Democrats refuse to make the case for reforming a captured court even given its widespread unpopularity and even during a close and bitterly contested race for the White House that probably sealed rightwing dominance of the supreme court into the 2060s, if not beyond.

It’s easy, with hindsight, to identify the myriad strategical misfires of the Kamala Harris campaign. Yet despite all the post-election autopsies, none have focused on this: Democrats were gifted an issue on which many Americans agreed, with wildly popular first steps – including term limits for supreme court justices and a binding ethics code – that share support from nearly 70% of all Americans, Democrats and Republicans alike. They squandered it.

Harris endorsed these reforms in July. She campaigned on restoring the reproductive rights curtailed by the court’s reversal of Roe v Wade. But neither the nominee or most anyone else in the party ever prosecuted the larger case that Americans have come to understand: that our courts are no longer truly courts at all. That while the chief justice pretends to be a humble umpire calling balls and strikes, he actually presides over an unelected super-legislature that has become the fount of Republican political power. That it’s the courts that have pushed policy on guns, voting rights, abortion, the environment and the basic safety provided by the regulatory state in rightward directions with which most Americans disagree, that enabled the gerrymandered capture of so many state legislatures now doing the same thing across the country, and that paved Donald Trump’s path back to the White House.

The Democratic party’s failure here goes well beyond this most recent campaign. Democrats had a trifecta in Washington after the 2020 election and made no serious effort on judicial reform. The judiciary committee, under the toothless leadership of Senator Dick Durbin, botched every opportunity to hold hearings and demand accountability after the revelations of vacations and other gifts awarded to the conservative justices. In 2016, Democrats nominated the milquetoast Merrick Garland to fill an opening presented by the death of Antonin Scalia, then barely bothered to fight for their nominee in the face of Mitch McConnell’s unprecedented blockade.

And while conservatives spent five decades building their own alternative legal establishment – complete with the Federalist Society as its credentialing factory, and presidents who agreed to outsource supreme court and other judicial appointments to extreme rightwing activists – Democrats trusted blindly and foolishly in the rule of law and the strength of institutional norms. They built little of their own. They failed to sound the alarm. They never bothered to build a mandate for popular fixes.

Now the bill is due. Leonard Leo, the Koch family, the Heritage Foundation and the Federalist Society will call the tune. Their front groups will find the litigants and the cases, even when the claims are phony and the harms did not exist. They will judge-shop for the handpicked jurist in a friendly jurisdiction in Texas or elsewhere in the fifth circuit, as they have in cases involving the abortion pill, immigration and fossil fuels. And then it will be launched on a speedway to the US supreme court, where the front groups use amicus briefs that they fund to send signals to the justices whose credentialing and confirmation that they have also bought and paid for.

The Roberts court has granted Trump unprecedented power in his second term thanks to its decision in his immunity case. Those new powers will come with virtually no accountability. But all this focus on Trump has obscured the source of this power. Trump, after all, will have to leave office in four years. What the right’s near-complete capture of the federal judiciary has ensured, however, is that it will remain in charge for decades to come regardless of who sits in the White House.

The new Gallup poll confirms that Americans fully understand that the anti-democratic courts have achieved this unaccountable supremacy. If only Americans also had a political party ready and willing to fight back on their behalf.

• David Daley is the author of the new book Antidemocratic: Inside the Right’s 50-Year Plot to Control American Elections as well as Ratf**ked: Why Your Vote Doesn’t Count