Justice Roberts Knows Better

Survey research has shown a sharp increase in the number of Americans who have very negative opinions of the Supreme Court. In response to that research, Chief Justice Roberts recently delivered an admonition: “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Really, Justice Roberts? Were you able to deliver that pearl of wisdom with a straight face?

As a number of pundits have noted–and as Roberts certainly knows– the dramatic drop in approval isn’t a consequence of unpopular results. It’s a consequence of the shocking dishonesty of the reasoning used to achieve those unpopular results, and the blatant illegitimacy of the processes that seated political/religious ideologues on the Supreme Court bench.

One of the most incisive responses to the Chief Justice’s weak defense was written by (formerly Republican) Jennifer Rubin, in the Washington Post.

Rubin correctly characterized Roberts’ remarks as unprofessional “whining,” noting that “no court was more heavily criticized than the Warren court.”

Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.

After noting that Roberts “really doesn’t get it,” and marveling about the degree to which the current court is “utterly and completely tone-deaf to its role in the destruction of its own integrity,”  Rubin  issued a withering critique that pinpointed the reasons this Court is so widely–and correctly– viewed as illegitimate:

Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.

And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.

Rubin’s column quotes a number of highly respected legal scholars who have been appalled by highly politicized decisions issued by this court.

It is true, as Rubin acknowledges, that Roberts didn’t author the most egregious opinions, but he has joined them. Rubin identifies the abortion ruling in Dobbs, the prayer-in-schools ruling in Bremerton, and the Brnovich decision on voting rights, written (again!) by Alito–a decision that Norman Ornstein accurately criticized as blatantly ignoring the plain language of the law and rewriting it to fit his “partisan and ideological views.”  She also quotes Ornstein’s observation that Roberts has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

Rubin quotes Stephen I. Vladeck, a law professor at the University of Texas saying  “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?” The operative word in that quote is “principled.” Americans respond very differently to Supreme Court decisions with which they disagree when they can see that those decisions were principled exercises in legal analysis rather than obvious distortions of facts and precedents employed to reach a preferred result.

Americans will also respond differently to decisions that expand American liberties rather than  reverse them. This Court is the first in U.S. history to constrict, rather than enlarge, individual liberty. When it removed a constitutional right that Americans had relied upon for  fifty years through a historically dishonest and legally-tortured decision, the Court focused  a glaring spotlight on its own illegitimacy.

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

Good proposals, but they will only be possible if large majorities of Americans vote Blue in November.


  1. How will voting for democrats improve the perceptions and functioning of the court?

    The courts are a reflection of the corruption in our rotting government. Ethics proposals that don’t have any teeth are worthless. It’s a given that politicians are unethical. How many in Congress are making bets on stocks based on inside information?

    Based on what we’ve learned about Ginni, Clarence Thomas shouldn’t hold any government position, yet alone be a member of SCOTUS. The fact he is serving demonstrates the ridiculousness of SCOTUS.

    Americans must ask why our government and judiciary reflect Charles Koch’s wishes. The Democratic Party still hasn’t called Charles to question his involvement in the 1/6 insurrection. Why not?

    Once you look closer at the obvious, you’ll see how ridiculous the media and government have become.

  2. I didn’t read the Rubin piece, but I’m sure she “forgot” to mention the Democrats’ role in politicizing the federal courts. For decades the Democrats have advocated that federal judges adopt their policy choices through creative interpretations of the Constitution and federal laws.. That includes Roe v. Wade. Numerous conservatives and liberal constitutional scholars have criticized the decision as an example of poor jurisprudence.

    I don’t know how Rubin could mention Garland without mentioning the politicized confirmation process which the Democrats started with Robert Bork which continued through present day and included unsubstantiated personal attacks on Clarence Thomas and Brett Kavanaugh.

    Now that the pendulum is swinging the other way, Democrats complain about the politicized courts. Would the Democrats would be complaining about the “politicization” of the courts if the judges were still enacting their liberal policy choices? Absolutely not.

    Chief Justice Roberts is 100% correct.

  3. Copied and pasted from the National Catholic Register: “With the confirmation of now Associate Justice Amy Coney Barrett to the Supreme Court Oct. 27, there are now six practicing Catholic justices. Barrett joins Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor and Brett Kavanaugh. To date, there have only been 15 Catholic justices — out of 115 justices total — in the history of the Supreme Court. Here is a quick glimpse at the six currently serving on the highest court in the land.”

    Please note that only one of the 6 is a woman and the fact that there have only been 15 Catholic justices out of 115 justices total in our history. When John Kennedy was running for president there was an outcry that this country would never elect a Catholic to the presidency; I found this confusing at that time. I now fully understand; after learning more about the restrictive requirements and demands of the Catholic religion and women being considered the lower class and subjected to men, this is becoming more and more the way of life in the United States due to the current Catholic makeup of the Supreme Court. I am sure the religious affiliation of Coney-Barrett and Kavanaugh was part of Trump’s decision to nominate them to SCOTUS…not that Trump has a religious bone in his head. But he knew he could count on them to support his determination to retain power and control if or when he was gone. Pope Francis is still speaking out against the centuries old history of their Priests molesting children and the cover up to protect them and maintain their Priesthood in other parishes. Yet the numbers do not seem to be decreasing and Trump’s decisions are increasing.

    The judge who is now aiding and abetting the cover up of Trump’s removal of government documents from the White House is a Trump appointee; he will again fall through the legal cracks and escape any punishment and will more than likely get his promise that the Supreme Court will uphold his actions.

    And here comes Paul K Ogden again with his collection of statistics. No one is mentioning Justice Ruth Bader Ginsberg, a Jewish woman, who was seated on the Supreme Court by a 97-3 vote. Yes; the appointments are political in the fact that both parties have appointed judges throughout this nation but; it was not the nominee’s political alliance which resulted in their appointments but their history of following Constitutional law and TRUTHFUL responses during their Senate hearings to gain the appointment.

  4. “unsubstantiated personal attacks on Clarence Thomas and Brett Kavanaugh.”

    What planet were you living on during those hearings? During the testimony of the women those ‘men’ abused?

    Bah. Who can talk to folks who think like that? It’s no wonder the country is polarized.

  5. JoAnn and Jane: Well stated. It’s the blindness of ideologues that has us in this situation in the first place. I watched the Kavanaugh confirmation and was utterly disgusted by his whiney, rich white boy rant. THAT alone was substantiation enough to NOT put him anywhere near the Supreme Court. But that’s what Republicans want. Now they shall reap the whirlwind.

    Todd is correct about nobody calling out Charles Koch (Except me in the two books I wrote on the subject.). He and his late brother have been sowing the seeds of sedition for decades. Look up the Lewis Powell memo to the U.S. Chamber of Commerce. This guy was another right-wing, Federalist ideologue who Nixon eventually put on the court. His “memo” was more like a manifesto that outlined how corporate America should go about destroying the Constitution and rational thought. Todd, of all people, should read that whole thing. It’s chilling.

    Roberts hasn’t a clue. He was, after all, appointed by a Bush as was Alito. These two followed yet another Federalist Society wanker, Antonin Scalia, to sully the court for decades. Yes. Term limits. Expanded court. BLUE TSUNAMI that buries the Republican attack on our democracy.

  6. The court has been “making law” since John Marshall. The difference now is the bottom feeding rationale for what they are doing. I’ve mentioned the least talked about, least well known amendment of the Bill of Rights, but I’m going to do it again. For those who claim to be originalists, this amendment makes it clear that the founders knew they couldn’t include every single right in any one document. They wrote that as more or less a saving grace. There are rights that don’t come to mind immediately no matter the breadth of knowledge of the writers. There are even some that we don’t actually ever think about. We just take it for granted that we are able to do these things in a free society, until now.

    One problem we face today is that we have relied too much on “norms.” In the past (up until Bork) we could rely on any President to nominate someone who was acceptable to both sides, thus avoiding a court made up of zealots. Bork was deemed unacceptable by the Dems, first because of his part in the “Saturday Night Massacre.” His writing indicated that his positions were out of the mainstream of legal scholarship. Up to that time, that was a definite no-no.

    Paul, you mentioned “unsubstantiated accusations.” Maybe you didn’t know that the Judiciary Committee had three women who had agreed to testify regarding their interactions with Clarence Thomas, that would have corroborated Anita Hill’s testimony. The committee chair shut the hearing down and called for a vote (an action I’m sure Mr. Biden regrets deeply). As far as Kavanaugh is concerned, the potential witnesses to his unseemly behavior would have crowded the entire building. The FBI was limited in its investigation by the White House, so many people who contacted them never were interviewed. Even without that testimony, Kavanaugh’s statement to the committee SHOULD have disqualified him due to his “lack of judicial temperament.”

    Mr. Roberts is not the leader of the the current court. I can’t think of any other Chief Justice who would let Thomas get by with his blatant disregard of the law.

  7. That response by the American people to the illegitimacy of the Supreme Court is already here and with dire consequences. It isn’t just that the justices have lost the respect of the people; it is that with that loss the very idea of the rule of law has been been dealt a deadly blow. No part of the justice system is now viewed as legitimate.

  8. The Senate (Mitch McConnell) politicized the Supreme Court by the appointment process. Now we have the product of their political shenanigans and Justice Roberts realizes that it has dented the legitimacy of the court which is what is to be expected from such politics.

    Why is anyone surprised by this result?

  9. Thank you, Vernon, for calling out the blatant error in JoAnn’s response!
    Jane, it might be a bit of a stretch to give credit to Trump for nominating Coney-Barrett and Kavanaugh,
    when it was probably very much McConnell’s doing, with DT most probably salivating at
    the idea.
    I can easily recall the “Impeach Earl Warren” signs posted along various roads, during my
    younger years!
    Reaping the whirlwind, for the GQP, would be lovely to watch, but I’m not going to hold my breath.

    In the 1960 election, when JFK was our first Catholic nominee for president, the concern voiced,
    by whomever it was that had the capacity to do so on a countrywide level, was the fearmongering
    idea that with a Catholic in the WH, it would be the Pope who dictated policy. Gee, could that
    voice have belonged to some already lying Republican?

  10. Mitch D.; what was the “blatant error” Vernon “called out” in my response? And where was it “a stretch” in Jane crediting Trump with Kavanaugh’s and Barrett’s nomination to SCOTUS? Just askin’

    And in 1960 the situation with the Pope and the Catholic church was unlike it is today; some Catholic churches individually are cherry picking which rules they want to endorse and those they want to ignore for their own convenience and satisfaction. They appear to be leaning more and more to the political. Pope Francis was openly outspoken in his views against Trump’s words and actions. He has also openly spoken about his views of Pro Choice. Yes; I have Catholic members in my family but don’t bother questioning their support of Trump in 2016 or if it continued in 2020; they have their own reasons for which rules they choose to follow, religious and political and the combination of the two.

  11. Leonard Leo and the Federalist Society have created the current extremely radical Supreme Clown Court. Since the 1982 founding of the Federalist Society Leo chose the radical judges that the GOP Presidents nominated to the supreme court.

    Future history books will designate the Federalist Society as the top destroyer of both the US Constitution and the Bill of Rights. This despicable society is funded mainly by Dark Money and those corporate dark money funders are responsible for the corrupt 2010 Citizens United decision that gave the corporate oligarchy unlimited power to corrupt our elections and our supposed democracy.

  12. Correct, Leo = Federalist Society = Catholic Natural Law = death of the United States of America.

    Turns out the Romans were great at more than just infrastructure.

  13. Roberts like all faux leaders feel he is entitled to respect because of his status thus whines about and blames the public for Supreme Court low rankings because the public is stupid and just doesn’t get it—Pawleze. He just sounds like another entitled chump who feels that w/o work to be a leader his title should enshrine him with respect.

    Sorry–that is not how the rest of us chumps feel. You have to work to earn respect-a title doesn’t automatically give you respect.

  14. Paul, while the Roe v Wade wade has been weaponized by the right, history shows it was not that controversial when it was announced. There was solid logic behind the ruling. Additionally, when Bork got Borked, it was the first time Republicans tried to nominate a poorly vetted, unfit person to the court, so who really started the politicization?

    Joann, you forgot to mention that Catholics only make up 25% of the US population. It begs to ask the question, does this court really represent America. Just like the previous president was only President for his Republican Base, this court has forgotten they are the Supreme Court of “The United States”.

  15. Once again, Peggy said it – so she saved you all from one of my lengthy posts
    Thank you, Peggy

  16. Peggy, courts have been,”making law” since the time when the village chieftain imposed what was “common” punishment for an offence. That is also what the Facists fail to understand about the function of our courts.

  17. Paul Ogden, you seem rational on many counts and I have some agreement with things you have said in the past. That said, you have a gigantic blind spot regarding the Court. “Unsubstantiated attacks”? You didn’t watch the same hearings I did.

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