Liberals Aren’t Discrediting the Supreme Court — It’s Discrediting Itself

To hear Chief Justice John Roberts, liberals have been unfairly impugning the motives of the six far-right justices who make up a majority of the Supreme Court—Clarence Thomas, Samuel Alito, Jr., Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and, of course, Chief Justice Roberts himself. Roberts doesn’t use the words liberal or Democrat. Unlike his bull in a china shop colleague, Samuel Alito, Roberts is far too politically astute to make such an overtly partisan statement. But, everyone knows who he’s talking about when he says the fact some people “disagree with an opinion is not a basis for questioning the legitimacy of the court.”

In a later statement, he adds “you don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is.”

Take a moment to roll around in your brain how entitled these words sound. While it is acceptable, according to the Chief Justice, for mere citizens—perhaps even liberals, God forbid—to criticize the legal reasoning behind the Court’s decisions, it is out of bounds to bring their legitimacy into question by exploring a justice’s apparent motives in reaching that decision. In other words, it is acceptable for far-right justices to use their judicial power to engage in a broad ideological crusade. What is unacceptable is for anyone to be so rude as to notice it.

Justice Barrett once infamously insisted that the Supreme Court “is not comprised of a bunch of partisan hacks.” Unfortunately, the far-right majority she is part of has consistently acted like just that.

The political right, using hardball political tactics, captured the Supreme Court, filling it with justices who are both ideologically ultraconservative and politically strongly pro-Republican. Safely ensconced with lifetime appointments, these justices are now using their judicial power to transform this nation into something more to their liking. They are working to create a nation with more religiosity, more corporate power, even greater wealth concentration, more tolerance of intolerance, less governmental protection for the environment, consumers, and labor, and, most of all, less messy democracy with “the political branches” and “the people” sticking their necks into the Court’s increasingly broad domain.

The fact a majority of Americans do not support most of these actions is apparently of no importance.

These are people on a mission. As I’ve written before, these far-right justices “all came of age as lawyers as part of the same Federalist Society clan. These are people who were bred from their earliest days in the law to be precisely what they have become—ideological combatants, united in purpose, playing the role of judges.”

This can be seen in the conservative majority’s contempt for precedent. The term “legal precedents” refers, of course, to prior decisions of the Court. Under the doctrine of stare decisis, courts are expected to usually, though not always, follow their earlier decisions. While this may sound like legalese, respect for precedent is central to the legitimacy of the judicial process. It is the one objective fact people can look to for assurance that a court is truly carrying out a judicial function, as opposed to simply acting like an unelected-second-legislative branch.

In other words, judicial respect for precedent is inherent to the constitutional separation of powers.

By respecting stare decisis, a court shows a seriousness about minding the boundaries of its power. When a court follows existing precedent, instead of simply imposing the policy beliefs of the court’s current occupants, in a very real sense it applies the judicial wisdom of the ages, as handed down. Even the members of the United States Supreme Court, the most powerful court in the country, do not, or at least are not supposed to, exercise that power by themselves. They are constrained by those who came before. Stare Decisis isn’t absolute, and even well established precedents will at times be abandoned. But when a majority of the Court begins routinely ignoring precedents, especially major precedents, as is occurring now, it severs the bonds of trust..

Justice Barrett once infamously insisted that the Supreme Court “is not comprised of a bunch of partisan hacks.” Unfortunately, the far-right majority she is part of has consistently acted like just that. The Court’s decisions demonstrate a consistent pattern of pro-GOP partisanship. With the exception of Trump’s ridiculous requests for the Supreme Court to literally snatch the presidency away from Joe Biden and give it to him, an action the Court would have been crazy to attempt, virtually every decision it has made that had partisan political significance has been decided in a manor favorable to the GOP.

Right-wing justices on the Supreme Court have opened the spigots of unlimited corporate money being injected into the political process; supported efforts to make voting harder for Democratic voting groups, such as minorities and young people; and approved political gerrymandering, all very helpful to the GOP. Probably the most striking example of the Court majority’s partisanship, however, is the gradual disembowelment of the Voting Rights Act at the very time that the GOP is working feverishly to establish a new Jim Crow for voting rights.

The Chief Justice has good reason to worry about the Court’s reputation, entirely aside from the current scandals stalking the Court. A growing number of Americans are questioning this Court’s legitimacy for more fundamental reasons. Where his logic becomes muddled, however, is in how he tries to assign the blame. Contrary to his statements, the Courts’ dramatic fall from grace with the American public isn’t the fault of people who have criticized the Court’s actions, any more than the Emperor’s embarrassment was the fault of the people who pointed out he had no clothes. Having been given an honor and power most Americans could only dream of, these six far-right justices had a choice. They could strive to become either respected jurists or successful ideologues and political advocates. They couldn’t be both.

They made their choice. They have no basis to complain that people are now calling them out on it.