Deep into the summer after a historic Supreme Court term, the Left’s criticism of the court is unrelenting — and in need of a thesaurus. The word “rogue” has been used to describe not only the high-profile rulings on religion, environmental regulation, guns, and, of course, abortion, but also decisions on
Indian law and Miranda rights
, the court’s
supposed threat to same-sex marriage
, and how it’s “
stacked with fanatics and lunatics
.” “
The Supreme Court Has Gone Rogue
,” proclaimed MSNBC. Rep. Alexandria Ocasio-Cortez (D-NY)
demanded
that Democratic Party leaders “share their plans” to solve the problem of “a rogue court.” Sen. Elizabeth Warren (D-MA)
chimed in
: “Congress must protect our democracy from this rogue Court.” The Congressional Progressive Caucus put out a
statement
insisting, “We must hold these rogue justices to account.”
And what would they like to be done about it? “The Constitution provides a number of paths by which Congress can restrain and discipline a rogue court,”
suggested
New York Times
columnist Jamelle Bouie
at term’s end, enumerating possible types of legislation (plus impeachment). Paying attention was none other than Sen. Sheldon Whitehouse (D-RI), who recently introduced a
Supreme Court Review Act
to “
check the Court’s rogue decisions
.”
What in the world is going on? This sounds like more than mere disagreement with a series of opinions or even the general direction of the court. This is a fundamental rejection of the court as an institution based on the belief that its majority is illegitimate.
In one telling on the eve of Brett Kavanaugh’s confirmation
, Berkeley Law Dean Erwin Chemerinsky pronounced that none of the Republican-appointed justices should be there. After all, in progressives’ bleak revisionist history, Clarence Thomas is a sexual harasser who lied to the Senate, John Roberts and Samuel Alito were appointed by a president the court itself “selected” in Bush v. Gore, Neil Gorsuch “stole” Merrick Garland’s seat, and Kavanaugh turned accusations of sexual assault against him into a partisan circus (and anyway was, according to a popular left-wing talking point, picked to grant Donald Trump newfangled legal immunity in the first place).
Joining them would be Amy Coney Barrett, who was, the story goes, hypocritically pushed through in defiance of Ruth Bader Ginsburg’s dying wish. Plus, all the Trump nominees are doubly illegitimate,
wrote Michael Tomasky
in the New York Times, because they were nominated by a president who didn’t win the popular vote and confirmed by senators who collectively won fewer votes than those who voted against their confirmation.
But even those who reject that fever-swamp narrative and focus on the law still decry the court’s rulings as undemocratic or extra-constitutional perversions. “The Court should only get the respect it deserves,”
intoned Georgia State law professor Eric Segall
back in March, arguing that certain decisions should simply be ignored. (The sympathetic interviewer gently pushed back, asking about whether Texas and South Carolina should just ignore the court’s ruling on same-sex marriage.) White House press secretary Karine Jean-Pierre, meanwhile, said that overturning Roe v. Wade was itself an “
unconstitutional action
.”
In other words, the six Republican-appointed justices, regardless of how they ascended to the bench, have ideologically hijacked the court, making radical decisions that are just partisanship disguised as law.
That line of attack, which, as the above examples show, comes not just from social media trolls but highly regarded academics, journalists, and public officials, is either disingenuous or ignorant.
It’s not that reasonable people, lawyers and non-lawyers alike, can’t in good faith disagree on this or any term’s big cases. And it’s certainly not that everyone who disagrees with my views is politically motivated. It’s actually the exact opposite: Those attacking the court’s legitimacy and labeling the justices partisan hacks seem to believe that the only way to reach the latest decisions is to be unprincipled and results-oriented.
That kind of attitude isn’t good for our country, particularly at a time when institutional trust is already low and political tribalism increasingly prevents either side from accepting electoral outcomes. Resolving our societal mistrust and overall national discord is way beyond the scope of this essay, but those angry at what’s going on at the court would be well-served if they stop reading between the lines and take the majority’s opinions at face value.
That is, it’s undeniable that there are very deep and serious legal differences among the justices on a host of issues. Critics may not like originalism and other historical methods of analysis — dead white men and all that — but the court majority tries its best to apply the original public meaning of constitutional provisions. Critics may not like text- and structure-based theories of statutory interpretation — Justice Stephen Breyer preferred looking to the law’s purpose in service of “active liberty” — but the court majority does (as does Justice Elena Kagan, by the way, though she sometimes disagrees with her colleagues’ conclusions).
It’s perfectly fine to disagree, even vehemently, on judicial philosophy and its practical applications, but there’s no more evidence that Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are legislating from the bench than that Justices Breyer, Kagan, and Sonia Sotomayor are.
To be sure, some on the Right accuse the latter trio, with Justice Ketanji Brown Jackson now having replaced Breyer, of acting on their policy preferences, but there’s no reason to question the good faith of those justices, either. They simply have a different way of looking at the law, especially in the high-profile cases with political salience. Perhaps some of the pundits and politicians who align with the progressive justices think that all jurists vote their values or in search of some cosmic “justice,” and they think it illegitimate to advance conservative values. I’m no psychologist, but there may just be some projection at play here. And it’s
intellectually inconsistent
to laud one set of result-oriented decisions but not another simply on the basis of whether you like the result.
Moreover, the justices themselves deny that cynical view, constantly going out of their way to compliment the colleagues with whom they disagree. In June,
Justice Sotomayor described Justice Thomas
as a “man who cares deeply about the court as an institution.” “He has a very different vision than I do about how to help people,” she explained, but added the two share a “common understanding about people and kindness.”
If the court’s critics were as charitable as Justice Sotomayor, there’s no way they’d see the big decisions from this past term — with which, again, they’re free to disagree — as so radical as to be extralegal deviations from the constitutional norm. The rulings from this consequential court session read precisely like legal rules that fully comport with our Constitution’s Overton window:
- States don’t have to give students funds to pursue the educational program of their choice, but if they do, they can’t exclude religious schools (Carson v. Makin).
- Personal prayer at public school events doesn’t constitute the state establishment of religion (Kennedy v. Bremerton School District).
- The right to keep and bear arms includes the right to bear arms (N.Y. State Rifle & Pistol Association v. Bruen).
- The Constitution is silent as to when life begins or rights attach, so abortion regulation is left to the states (Dobbs v. Jackson Women’s Health Organization).
- An administrative agency can’t assume awesome regulatory authority without Congress having explicitly given it that power (West Virginia v. EPA).
People (and lawyers) can debate all these points in good faith, but there’s simply nothing extreme or Constitution-shattering about them. The policy consequences may or may not be significant, but that’s for Congress and state legislatures to grapple with.
Interestingly, the
latest Gallup poll
shows that
public confidence in the court actually increased 3 points from a year ago
, to 43% — relatively low, but still higher than for any federal institution save the military. That overall figure obscures a huge partisan gap, such that the increase in Republicans’ approval, to 74%, was greater than the decrease in Democrats’ approval, to 13%. But that split in turn mirrors the one from 2015, after the Obergefell v. Hodges same-sex marriage ruling, when the court’s favorability among Republicans was 18% and among Democrats 76%.
In sum, public opinion always reflects the public’s views on the balance of a term’s decisions, but experts and elites should be more circumspect and nuanced. Progressives should learn from their hero, Franklin Delano Roosevelt. In 1941, just four years after his court-packing scheme failed, only two justices remained whom FDR hadn’t appointed — and one of those, Harlan F. Stone, Roosevelt had elevated to chief justice. In a very real sense, then, Democrats took control of the court the old-fashioned way, by keeping the White House and Senate and waiting for natural attrition.
“It will take time to build the kind of power and consensus needed to make significant changes to the court,”
Bouie thus counsels his fellow travelers
, without being able to resist adding that “the work of amassing that power and putting that consensus together can stand as a credible threat to a Supreme Court that has acted, under conservative control, as if it stands above the constitutional system, unaccountable to anyone other than itself.”
That last bit is telling, because the court is indeed “unaccountable” — in the sense that justices don’t face election campaigns and by tradition aren’t impeached for unpopular rulings — but that’s by design. Only with that insulation can the judiciary fulfill its independent role as a countermajoritarian check on the politically accountable branches.
Judicial power is an enforcement mechanism for the strictures of a founding document intended just as much to curtail the excesses of democracy as to empower its exercise.
But the court isn’t perfect. As Justice Robert Jackson said, “We are not final because we are infallible, but we are infallible only because we are final.” In a country ruled by law, and not men, the proper response to an unpopular final legal decision is to change the law or amend the Constitution. Any other method leads to a sort of judicial abdication and the loss of those very rights and liberties that can only be vindicated through the judicial process. Or to government by black-robed philosopher kings — and as the late Justice Antonin Scalia liked to say, why would we choose nine lawyers for that job?
There’s a lesson there for today’s critics. It’s all well and good for Democrats to run against a court whose Dobbs ruling, or at least the mythical version of it promoted by the media and Democrats in public office, appears unpopular. But proposing to pack it, blow it up, or ignore it is a bridge too far. Perhaps that’s why President Joe Biden hasn’t gone in for any structural “reforms” yet, instead just lambasting the court, apparently without violating the “norms” that President Trump did whenever he did so, and calling for selective filibuster carve-outs to pass remedial legislation.
If progressives really think their jurisprudential vision is more popular than that of the current court — if they have the courage of their convictions — they should bide their time and seize their future opportunities, the way both parties have done in the past.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and
author of
Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court
, now out in an updated paperback edition. He also writes the
Shapiro’s Gavel
Substack newsletter.
