In the matter of the Supreme Court v. the Supreme Court, it’s safe to say the Supreme Court is most assuredly losing. And as the justices take turns pinning their smelly socks and underwear out on the line for the world to see, the problem only worsens. After a term that featured gross misconduct and impropriety both on the docket (overturning Roe v. Wade, expanding gun rights in a nation drowning in guns, fetishizing religious liberty over basic equality) and off the docket (internal leaks, inappropriate speeches, spouses fomenting insurrection) the briefs have been filed and the court’s own public legitimacy is now being litigated. If you thought last term started off badly, just wait.
In the interim, I would like to just point out that Chief Justice John Roberts and Associate Justice Elena Kagan have more in common than you might think. They are both brilliant, personable, and influential, and both of them tend to put the interests of the institution before their own. So while it was already a thing to have Justice Clarence Thomas trash-talking his colleagues, his chief, and his court last spring, it’s quite another when the term opens with Roberts and Kagan prepared to litigate on public stages the matter of who is trashing the court’s reputation.
Nevertheless, it remains the truth that the Supreme Court opens its term in three weeks with its lowest public approval ratings in the history of polling. Roberts and Kagan this week presented their respective cases for why.
Chief Justice John Roberts, offering his first public remarks since the Supreme Court’s disastrous 2021 term ended, went with the standard victim blaming opening. At a judicial event in Colorado Springs, Colorado, last week, Roberts bemoaned the linking of the court’s continued legitimacy to its abysmal public approval ratings.* This simply makes no sense to him. To hear Roberts tell it, the problem is not a hyperpoliticized court that reversed precedent, ignored its own doctrine, and imperiled many women’s lives. The problem is that people who are angry about those things rather correctly believe that it was the Supreme Court that brought them about. No, Roberts would prefer that the people suffer in silence. Here is how he put it: “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
M’kay. When Justice Antonin Scalia told people to just “get over it” after Bush v. Gore, the message was the same, but at least he was being honest about it.
On a stage in Brooklyn Monday night (geography matters people!) and in a conversation with Judge Alison J. Nathan, Justice Elena Kagan offered up her dissent to that point of view. “I think judges create legitimacy problems for themselves—undermine their legitimacy—when they don’t act so much like courts and when they don’t do things that are recognizably law,” she said. To Kagan, this current legitimacy crisis is not the fault of a public that has, you know, eyes and ears. It is the responsibility of justices who, as she put it, “stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.”
As Jennifer Rubin observed Monday, Roberts’ theory of the case is riddled with holes. He himself has done so very much to erode the public legitimacy of the current Supreme Court that he should recuse himself for a conflict of interest. His tireless, decadeslong work of eroding voting rights alone suggests that he cannot pretend he is not all in with the conservative supermajority’s project to replace democracy with juristocracy.
And Roberts knows better than to suggest that he doesn’t care about the connection between public opinion and the court’s legitimacy. While he may have said, onstage in Colorado, that “you don’t want public opinion to be the guide of what the appropriate decision is,” he himself refused to join the majority opinion in Dobbs overturning Roe v. Wade, precisely because he understands what cavalier reversal of precedent tends to do to public opinion. As he himself wrote in his concurrence, the decision to overturn Roe would be a “serious jolt to the legal system.”
That same idea, that a change in the court’s composition shouldn’t be the basis to change doctrine, was echoed Monday night in Kagan’s remarks: “The public has a right to expect,” Kagan said, “that changes in personnel don’t send the entire legal system up for grabs.” Listen carefully and they are both making precisely the same argument.
Finally, when Roberts lays blame on the public for losing confidence in the court, he fails to recognize that while he couldn’t have done anything to stop a runaway majority from taking away basic freedom, dignity, and equality all year, he did nothing about the things that were ostensibly in his power to control: the grotesque abuse of the court’s emergency “shadow docket” to create new law that is not properly explained or applied; the wildly unethical behavior of his colleagues, ranging from Ginni Thomas’ improper involvement in efforts to end abortion to the partisan speeches that make the justices sound like partisan hacks and the nonexistent ethics rules that allow his colleagues to do all this with impunity. None of those things concern the win/loss column. They are all very public performances that the court can do anything it wants, without consequences.
Roberts knows better than to suggest that the court’s problem this past term was simply a matter of “people disagreeing with a decision.” The court was handed to wealthy secret donors because of his own jurisprudence. And the court’s problem is now that it happened in plain sight. With all due respect, it is not that the public didn’t like the final score at the end of the term when the lights went out in June. The problem wasn’t just the losses; the problem was that his team moved the game to another field, then stole the ball and replaced it with a time bomb, then changed the rules, then lied about it, and then set the entire field ablaze. Now he wants everyone to shake hands and go home. The public is not so inclined. He is far too smart to believe we are all this stupid, which suggests to me that he knows we are right.
Correction, Sept. 13, 2022: This article originally misstated that Roberts spoke last week in Denver. It was in Colorado Springs.