The reputation of the Supreme Court took a pretty good hit this year, what with its ethical lapses by conservative justices, and the consensus opinion of almost everyone who watches them that the court has become more political and more partisan with each and every year.
John Roberts, the Chief Justice of the court — an acknowledged “institutionalist” — is keenly aware of this. And keenly aware that the sniping between justices like Thomas and Brown-Jackson in cases like the “Fair Admissions” case does not enhance their credibility.
Unlike Antonin Scalia and Ruth Bader Ginsburg — who were known to genuinely like each other despite their ideological differences — that does not seem to be the case for justices like Thomas and Brown-Jackson.
So, in the Biden v. Nebraska case, the Chief Justice took it upon himself to write this unusual paragraph:
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Today, we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent— old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decision making in doing so. Reasonable minds may disagree with our analysis—in fact, at least three do. We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
However, the Chief Justice’s effort to persuade is not going to be persuasive. In fact, Justice Kagan had a pretty tart reply:
From the first page to the last, today’s opinion departs from the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent. In saying so, and saying so strongly, I do not at all “disparage” those who disagree. . . And there is surely nothing personal in the dispute here. But Justices throughout history have raised the alarm when the Court has overreached—when it has “exceed[ed] its proper, limited role in our Nation’s governance.” . . . It would have been “disturbing,” and indeed damaging, if they had not. . . The same is true in our own day.
The problem is, of course, that people recognize that the court — as I have previously pointed out — has decided cases that don’t need to (and in some cases really should not) be decided. In doing so they are overturning long-settled precedent and taking away rights.
When the liberals were in the majority the conservatives tended to complain bitterly about “activist” judges creating rights that they believed were not in the Constitution. And that was, at times, a fair complaint.
What we now have is activist judges (or perhaps “deactivist” judges) taking away rights that have already been enshrined in the Constitution. For many years.
Defenders of the court have argued that the court is not just a 6:3 court, it is really a kind of 3:3:3 court. Three hard right justices (Thomas, Alito, Gorsuch), three moderately right justices (Roberts, Kavanaugh, Coney-Barrett) and three moderately left justices (Kagan, Sotomayor, Brown-Jackson).
And yes, there are plenty of unanimous decisions, and a few surprising decisions such as Moore v. Harper, (refuting the independent state legislature theory) or Allen v. Milligan (finding that Alabama’s congressional map violated the Voting Rights Act).
But on the biggest and most important cases — affirmative action this year, abortion rights last year — the Court is taking away fundamental rights through a 6:3 conservative majority. They certainly did not have to take away debt relief from some 2.2 million former students.
And then, of course, there is the case of Justice Clarence Thomas. Aside from his many ethical lapses, Clarence Thomas is a hypocrite’s hypocrite. The man is married to a white woman — ironically named Virginia — which would not have been possible but for the case of Loving v. Virginia, which decided that the “due process” clause of the 14th amendment did not permit states to prohibit men and women of different races from marrying. And yet, here is Thomas deciding not only that the 14th amendment no longer protects the right to abortion, but now also deciding that it no longer protects efforts at affirmative action.
Clarence is apparently the original angry black man. This can be discerned from the recent and probing profile of Thomas on Frontline. He’s still resentful to this day, that anyone would question his bonafides even though he clearly benefited from affirmative action . . . twice! Thomas was apparently a fan of Malcolm X. He has a funny way of expressing his admiration.
And now we have Mitch McConnell, the architect of this court — he stole Merrick Garland’s seat and gave it to Neil Gorsuch, and he rushed Amy Coney Barrett onto the court in the dying days of the Trump administration — backing away from the court because it has become so unpopular. So unpopular that it might derail his efforts to regain the Senate in 2024.
Next year, the court is likely to hear arguments about whether to ban or limit the use of the FDA-approved abortion pill mifepristone.
Just in time for the 2024 elections.
In the short term, the court is not going to be expanded from 9 to 13 justices, and the life-time appointments are not going to be reduced to a term of years — like, for example, 18 year terms — even though they should be. So we’re stuck with this court for quite a number of years to come.