Tomorrow, the first Monday in October, begins the new term of the Supreme Court of the United States. Yes, it hasn’t yet been canceled, though not for lack of trying. The problem is that it’s a co-equal branch of a tripartite government. The other problem is that its decision in Dobbs reversing Roe v. Wade crossed a line that finally touched an issue the normies understood and touched their world.
It came on top of a variety of other decisions, last term and in years past, that were hated by a politically-focused slice of the polity, but this time, in Dobbs, it crossed a line that touched the lives of a majority of Americans, that was contrary to what the majority of Americans accepted and, indeed, wanted as a right. You may disagree, vehemently, but the numbers don’t lie. In the minds of many, this sealed the fate of the Supreme Court as an institution that was built to be immune from politics but had now been captured by politics.
Chief Justice John Roberts recently suggested that the court’s low public opinion is nothing more than sour grapes by those on the short end of recent rulings. “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court,” he said in remarks at a judicial conference earlier in September.
This response was either foolish or disingenuous. The problem wasn’t that people disagreed with an opinion. People have been disagreeing with Supreme Court opinions, very strongly, forever. The problem is that people believe the fix was in, that this wasn’t an opinion with which most people disagreed, like Brown v. Board, but a pre-ordained outcome that only awaited a vehicle to do the dirty work of an extreme minority view.
To the extent some argued that a conservative majority court was not an evil, but merely the normal course of government when the majority of the nation put into place the mechanism to appoint and confirm conservative justices, Dobbs sucked the wind out of the claim. The same could be said of the Court that held abortion a right in Roe, a Court reflecting the justices that were duly appointed and reached their decision. The deal was done. Who was this new group to make it undone?
To pretend there is no “crisis of legitimacy” is childish. Some, like the New York Times’ Linda Greenhouse, have been screeching about it for the past five years after the Senate disgracefully refused to give Merrick Garland a shake. But what that means, a “crisis of legitimacy,” just took an interesting turn. Some may have thought it meant the Supreme Court was now so terminally tainted as to no longer merit the acceptance of the public. It blew its cred, and as the Least Dangerous Branch, it was now unarmed. Not so fast.
It is precisely during times like these that the American people need the Supreme Court to play the role Chief Justice Roberts memorably articulated at his own confirmation hearing — that of an umpire calling balls and strikes, ensuring a fair playing field for all. Instead, the court’s right-wingers are calling balls for one team and strikes for the other.
This comes from a New York Times editorial and represents the voice of the Newspaper of Record. What’s remarkable isn’t its grievance, or its understanding or argument as to what the Supreme Court did wrong. Those things are both obvious and well known, and the editorial provides a litany of cases from the last term and years past that progressives abhor, and notably ignores rulings that they favor, like Bostock. But I digress.
What’s remarkable is that the Editorial Board isn’t delivering a eulogy for the now dead-to-them Supreme Court, but rather a path back to legitimacy and righteousness. It rejects, gently but clearly, the reinvention of the Supreme Court to overcome the crisis.
There is no clear solution to this crisis. Legal scholars have put forward many proposals for structural reform — expanding the number of justices, imposing term limits or stripping the court of jurisdiction over certain types of cases — but none are a perfect remedy to the court’s politicization.
And the Times looks to the coming term.
In the coming months, the court will decide cases on affirmative action, the Voting Rights Act (yet again) and the power of state legislatures to ignore their own constitutions and even their voters. The rulings in these cases could dramatically reshape the country’s politics, and Americans should be able to trust that those rulings will be made by an impartial tribunal.
Are they saying the Supreme Court has the opportunity to redeem itself, to re-establish its legitimacy by ruling contrary to the conservative party line and upholding liberal virtues? So it seems. In other words, the Court is not dead yet, or rumors of its demise are greatly exaggerated.
Does this mean the Dobbs majority won? Hardly. This may very well prove to be the battle that lost the war as a newly re-energized citizenry heads to the midterm polls. But it does mean that the Times hasn’t given up on SCOTUS, hasn’t written its obituary on the editorial page, but is still trying to make it serve in the Times’ image.
With a few exceptions, the Supreme Court rarely has been at the forefront of making America a more equal place. But we are not consigned to living under the thumb of a reactionary juristocracy. To the contrary, the meaning of the Constitution is far more than what the court decrees; it is the result of an ongoing conversation between the court and the American people. Those who protested the loss of their rights after the Dobbs decision, and those who showed their determination to protect those rights, as voters did in Kansas in August, are speaking directly to the court. When the justices stop listening, as they have at other moments in history, the people’s voices will eventually become too loud for them to ignore.
That the Supreme Court’s decisions, to the extent the public knows or cares, are fairly consistent with public opinion isn’t because it seeks to curry favor with the masses, but that there is a natural alignment in perception. There is no causal connection. Correlation does not imply causation. And the philosophy that the Constitution is a living document allowing the Court to find “rights” when the public wants them is one legal philosophy, even if it’s not the dominant one at the moment (or for the foreseeable future).
But even if the Supreme Court does not turn over a new leaf, pander to progressive sensibilities in exchange for grudging legitimacy, the New York Times makes a very good point that while SCOTUS is unlikely to become a wing of the progressive left, it must eschew being a wing of the extreme right. We have an elected president. We have an elected Congress. We need an impartial SCOTUS to do its job, and that job is not to use its limited power to undo rulings the right doesn’t like. If it fails or refuses, then who needs it?