Chief Justice John G. Roberts Jr. has joined the list of other right-wing justices (Samuel A. Alito Jr., Amy Coney Barrett, Clarence Thomas) whining about public criticism of the court.
Let’s begin by recalling that no court was more heavily criticized than the Warren court. Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.
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Appearing at a legal conference Friday, Roberts declared, “You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is.” He continued: “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.”
He really doesn’t get it. The degree to which this court is utterly and completely tone-deaf to its role in the destruction of its own integrity remains a powerful reason for court expansion or term limits.
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“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.
Ruth Marcus: What Chief Justice Roberts misses
University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”
Let’s start with the obvious. It’s a fact, not an accusation, that the court is losing the public’s confidence. One need only look at a slew of polls to see that the court’s self-image as a nonpartisan institution does not match public perception. The question that remains is whether Roberts and the other five conservative justices will make it worse.
Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.
And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.
There is a price to be paid for such shenanigans.
If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”
While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”
He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”
The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.
So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.
Let’s begin by recalling that no court was more heavily criticized than the Warren court. Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.
Sign up for a weekly roundup of thought-provoking ideas and debates
Appearing at a legal conference Friday, Roberts declared, “You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is.” He continued: “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.”
He really doesn’t get it. The degree to which this court is utterly and completely tone-deaf to its role in the destruction of its own integrity remains a powerful reason for court expansion or term limits.
Follow Jennifer Rubin's opinionsFollow
“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.
Ruth Marcus: What Chief Justice Roberts misses
University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”
Let’s start with the obvious. It’s a fact, not an accusation, that the court is losing the public’s confidence. One need only look at a slew of polls to see that the court’s self-image as a nonpartisan institution does not match public perception. The question that remains is whether Roberts and the other five conservative justices will make it worse.
Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.
And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.
There is a price to be paid for such shenanigans.
If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”
While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”
He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”
The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.
So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.