The Supreme Court is well aware of its weight. Its opinions and dissents and the public appearances of its justices are filled with demonstrations of self-awareness about its power and influence and the perceived quandary of the court’s existence.
In testimony before the Senate Judiciary Committee in 2011, Justice Stephen Breyer posed this question about the Supreme Court: “We live in a democracy, and we do decide matters that will affect you, so why should nine people who are not elected have that authority?” It turns out, he offered a very compelling answer over the hearing’s course, one that was very protective of his institution as a necessity and very insistent on its independence.
Perhaps his view has changed, but at least in 2011, Breyer rejected the implications of a cynicism like that recently expressed by Politico’s John Harris. In a recent column, Harris quotes Chief Justice John Roberts, who, in 2018, said in response to none other than President Trump, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Harris’s response is, “Very nice words. But what planet is Roberts on?”
These are the current conditions. This is the current sentiment, shared among Democrats and others in the Democratic-aligned activist class — the high court is a court of political actors. Harris doesn’t resolutely call the court, or the process of confirming Amy Coney Barrett, “illegitimate,” as so many others have done, but his words are still foreboding: “The Supreme Court is begging for a legitimacy crisis.” The court has responded to that charge, or at least the threat of it, many times before.
In Planned Parenthood v. Casey, the court reaffirmed Roe v. Wade and created the “undue burden” standard. The majority opinion was co-authored by former Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter (all three Republican appointees, for what it’s worth). “Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance,” the justices wrote. “Moreover, the country’s loss of confidence in the Judiciary would be underscored by condemnation for the Court’s failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law (emphasis added).”
Former Justice John Paul Stevens, not using a version of “legitimate,” raised the concern of confidence in his Bush v. Gore dissent, which Harris notes. “Time will one day heal the wound to that confidence that will be inflicted by today’s decision,” Stevens writes. “One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
To be clear, the Supreme Court has long challenged public confidence, disappointing just about every political faction under its jurisdiction. Roe, Casey, and NFIB v. Sebelius are all cases that political conservatives firmly believe were decided not just wrongly but recklessly. Shelby v. Holder, Citizens United v. FEC, and the recent case on the Wisconsin mail-in ballot deadline are some rulings that frustrate liberals.
The court disappoints everybody, and its current and most strident liberal opponents don’t seem to recognize that. What can be frustrating is how frequently liberals, motivated to defend their charges of illegitimacy, look narrowly at final vote counts and outcomes while avoiding both the legal arguments at work and other court decisions that might please them.
In Harris’s case, he doesn’t even attempt to make necessary distinctions. For example, he asks, “Is it self-evident that Americans should show solemn respect to a Court that decides, with clear ideological and partisan divisions among its members, that while it intervened in Florida to stop vote-counting with the presidency at stake [in Bush v. Gore], it has such respect for states that it won’t intervene in Wisconsin to ensure that legal votes are counted?” He fails to consider how the other recent election law cases have gone, and he fails to consider the jurisdictional distinctions that Roberts has just made this year — it was a federal district court that changed Wisconsin’s ballot receipt deadline, not the state Legislature or a state court.
It was on those grounds that Roberts voted to uphold the 7th Circuit’s decision throwing out the lower-court election rule change in Wisconsin. Remember also that Roberts had voted already to keep the Pennsylvania Supreme Court’s election law changes in place (a liberal victory) and that last Wednesday, Roberts and Justice Brett Kavanaugh both voted to leave in place the North Carolina Board of Elections’s rule changes in place (a liberal victory). This is the same court that risks illegitimacy for being too partisan.
Those charging illegitimacy have a vested interest in the court’s illegitimacy. The less legitimate the court, the more justification a political coalition feels it has to change things so it can deliver for them more often. Harris admits this. “Some progressive activists actually hope that Roberts will stop trying so hard to keep all the plates up in the air,” he writes. “Just let Trump’s and McConnell’s logic play out. A conservative Court will strike down Roe v. Wade and Obamacare — and then let the electoral backlash on behalf of progressives begin,” he continues. But it has already begun.
The final point is one about Roberts, who is widely recognized by liberals and conservatives as one who wants to “keep all the plates up in the air”; to insulate the court from politics and charges of illegitimacy. Ken Starr has offered a similar assessment, as have others who point to his decision in NFIB v. Sebelius upholding the Affordable Care Act. The legitimacy question is a storm cloud that he, as the chief and the swing voter, must find a way to negotiate. It is something that he will have to consider if the final election results end up being litigated in his court and the vote is close.
It’s important to remember, though, that we don’t yet know what case will be brought before the court, if any, but Roberts and even Kavanaugh have ruled in a way that puts to bed the illegitimacy charges. The court’s history is filled with other rulings that have satisfied particular partisans on one occasion while disappointing them on another. Whether a columnist, or a whole cohort of street marchers or elected officials, recognize that manifestation of legitimacy is a measure of their intellectual honesty.
