Jurisprudence

Why Many of the Supreme Court’s Critics Are Trying to Save the Court From Itself

Whitehouse seated on a panel holding a sign listing criticisms of the shadow docket
Sen. Sheldon Whitehouse at Wednesday’s Senate Judiciary Committee hearing to examine Texas’ abortion law on Capitol Hill. Tom Williams/Pool/Getty Images

Progressives have good reason to criticize the Supreme Court. Their frustrations have been building for years, starting with the non-confirmation of Merrick Garland to replace Justice Antonin Scalia and the continuing anger over Republicans’ hypocrisy, cynicism, and even schadenfreude with respect to the subsequent confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. As of late, the court’s increasingly prominent turn to the right in its substantive rulings, on everything from guns to campaign finance to property rights to voting, is reason for worry. And most recently, there is a growing perception that this new conservative majority is taking procedural shortcuts, including through the “shadow docket,” for the simple reason that it can.

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These criticisms have only intensified since the court’s late-night Sept. 1 ruling on S.B. 8, which effectively bans abortions in Texas. And the justices, and their defenders on Capitol Hill, have noticed. In mid-September, Barrett gave a speech at, of all places, the Mitch McConnell Center at the University of Louisville (where she was introduced by McConnell) in which she complained that the press portrays the justices as “partisan hacks.” Last Thursday, Justice Sam Alito gave a speech at Notre Dame Law School in which he painted the court’s critics as being engaged in “unprecedented efforts to intimidate the court.” Alito’s remarks came just one day after Republican senators spent most of a Senate Judiciary Committee hearing ostensibly devoted to the court’s ruling on the Texas abortion ban criticizing Democrats for having the temerity to criticize the court.

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Sen. John Cornyn, for instance, accused the court’s critics of overtly seeking to undermine its legitimacy. Sen. Ted Cruz chastised Sen. Chuck Schumer for standing on the court’s steps and threatening the justices (by, it should be said, alluding to remarks by Justice Kavanaugh*). And Sen. Josh Hawley suggested that the hearing was a thinly veiled attempt to intimidate the justices ahead of the Supreme Court’s Dec. 1 argument in Dobbs v. Jackson Women’s Health Organization, a case in which Mississippi has asked the court to overturn Roe v. Wade. (For the record, Cruz, Hawley, and Mike Lee have also asked the same.)

I testified at last week’s hearing. Many of the senators at least indirectly directed their criticisms at me. It’s true that I have grown far more publicly critical of the court in recent years, especially of its work on the shadow docket. I’ve grown increasingly concerned about the sharp uptick in unsigned, unexplained, and increasingly inconsistent rulings that affect the rights of millions of Americans. I can’t speak for all progressive critics of the Supreme Court, but I can speak for myself: We are within sight of a full-blown legitimacy crisis. My criticisms are not an attempt to exacerbate that crisis, but to impel the justices to avoid it.

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If their recent public appearances are any indication, the justices also understand that a crisis is looming. As the justices have long admitted, the power of their rulings comes from the court’s legitimacy. The court has no military to enforce its judgments. So it depends upon popular support, not for rulings that the public generally supports, but for its unpopular rulings in particular. To that end, the court defines its legitimacy as “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” In other words, it’s not that the justices are getting each ruling “right,” but that they’re responsibly exercising judicial, rather than political, power.

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This legitimacy is eroding quickly. The court is as unpopular now as it has been in a generation. Many progressives—who reasonably fear what the new conservative majority portends for everything from the modern administrative state to the social safety net, elections, and the rights of criminal defendants—smell blood in the water.

I too am worried. I see the justices behaving in ways that, whether deliberately or not, reinforce the progressive narrative that the court has been subject to partisan capture, and I cringe. I see friends on the left plotting congressional attacks on the court’s jurisdiction to make it harder for the justices to even hear certain kinds of disputes, and I shudder. I see progressive calls to add seats to the Supreme Court as transparent retaliation for the confirmations of Gorsuch, Kavanaugh, and Barrett—and the non-confirmation of then-Judge Garland—and I grimace.

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It’s not because I disagree with what the progressives fear; it’s because I fear that the alternative is worse. Many agree that adding seats to the court for transparently partisan reasons will touch off an inevitable race to the bottom that ends in a court with 37 justices and no legitimacy. Given the current composition of the court, some progressives do not fear that day. But given my hope that this country has a future, I do.

Our constitutional republic needs a Supreme Court, even one populated with a majority of justices with whom we routinely disagree. No less so than when this country was founded—and perhaps far more so with the proliferation of partisan gerrymandering—tyrannies of the elected majority remain a very real threat. The whole point of having an independent, unelected judiciary was to stand as a bulwark against the mob: to enforce the Constitution at the expense of democratic (or not-so-democratic) majorities in those infrequent but important moments when it is necessary.

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We will never all agree on which moments (and which of the Constitution’s provisions) justify such counter-majoritarian judicial intervention. But we do all agree that when they come, we need not just a court, but a court perceived to be legitimate. A toothless court, in contrast, would have no ability to stand up for our rights, whether the unchecked tyrannical majorities have Democratic leaders or Republican ones. Its decisions would simply be ignored or dismissed as partisan claptrap that should not be understood to bind the other side.

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None of this is to say, though, that critics should stop criticizing the Supreme Court. Indeed, the implication that the court’s declining public approval and the eroding legitimacy it bespeaks have somehow been caused (or, at least, exacerbated) by progressive critiques confuses the cart for the horse (and, frankly, gives the court’s critics, not all of whom are progressives, far too much credit).

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In almost every respect that matters, the justices are doing this to themselves. No one is forcing the current justices to hand down, on the shadow docket, more rulings that affect more Americans than ever before. No one is forcing the current court to decline to explain itself when it does so, or to insist that its unexplained and inconsistent rulings nevertheless have precedential effect. No one is making the justices choose a celebration of McConnell at his eponymous think tank as the nonpartisan forum from which to give an unrecorded speech criticizing the media for portraying the justices as partisan. No one is compelling the justices to give speeches defending the court’s growing use of emergency orders that repeatedly mischaracterize both the court’s actions and the criticisms thereof.

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Most importantly, no one is making the current court hand down a growing number of merits rulings that smack of power over principle—decisions in which the conservative justices are repeatedly going beyond what even the parties are asking of them to reshape American law in ways that are deeply unpopular and increasingly divorced from analytically consistent principles of statutory and constitutional interpretation. And insofar as the court’s declining legitimacy is a direct function of the justices’ own behavior, it’s hard to imagine that behavior stopping just because the critics are cowed into submission.

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With the justices’ October 2021 term starting today, I come to praise the court as an institution, not to bury it. But if Republican senators, and more importantly the justices themselves, are genuinely worried about the erosion of the court’s legitimacy, perhaps they ought to listen to some of the criticisms being leveled by progressives, rather than attack progressives for making them.

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After all, it is no exaggeration to say that democracy itself may depend upon a court still widely perceived to be legitimate in the months and years to come, as courts become the battlefield for fights over voter suppression laws, election integrity disputes, and perhaps even the legitimacy of election results themselves. While the alternative to a legitimate court may be satisfying in the short term, it will end poorly not just for the justices, but for all of us who aspire to, in John Adams’ trenchant words, “a government of laws, not of men.”

Correction, Oct. 4, 2021: This article originally mischaracterized Sen. Schumer’s remarks about Justice Kavanaugh.

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