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.