U.S. Supreme Court Chief Justice John Roberts is blaming the American public for the court’s loss of legitimacy. At a legal conference in Colorado earlier this month, Roberts made note of recent polling that shows the public’s view of the high court and its legitimacy has plummeted since 2020.
Roberts argued that some of the court’s recent decisions, which have been unpopular with the public, have raised questions about the court’s legitimacy, a reaction that Roberts says is wrong.
“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely inappropriate,” he opined to attendees at the conference.
“Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
Roberts is correct on both counts, yet his comments reveal a surprising lack of understanding of some of the key factors behind the high court’s fall from grace.
Perhaps the most significant wasn’t even the fault of the court itself. There is a distinct partisan divide when it comes to the court’s legitimacy. Democrats are far more likely to view the current court as illegitimate, not because of any particular ruling, but because the current makeup of the court is illegitimate in itself due to the actions of the U.S. Senate while under GOP control.
When Mitch McConnell and the rest of the GOP Senate leadership blocked President Obama from replacing the late Antonin Scalia with fully eleven months left in his presidential term, (arguing that it should be up to the next president to decide his replacement), and then rushed through a religious fundamentalist in Amy Coney Barrett to replace the liberal lion Ruth Bader Ginsburg, barely a week before the 2020 presidential election, GOP leaders exposed themselves as the ultimate hypocrites and the high court as inherently political.
If Roberts wants the American people to view the court with the legitimacy he believes the justices are owed, it’s up to the justices to demonstrate they aren’t simply partisan hacks enacting a Republican agenda to take America to the 1800s.
Despite the occasional effort by Roberts to rein in his antediluvian court majority, the court in the wake of Barrett’s appointment has taken a hard and very political turn. The key principles of judicial restraint and stare decisis have been tossed out the window as the court’s radicals are intent on stripping Americans of their right to be left alone by the government, and of elevating the powers of the judiciary by weakening the powers of both other branches of government.
They’ve made clear their intent to enshrine Christian fundamentalist principles into government, in direct conflict with the Constitution, and have drawn fresh battle lines to block government action on climate change. In case after case, they have done so by going far beyond the issues actually before them.
Americans are rightly concerned. The voters in 2020 put the Democrats in full control of the other two branches of government. Yet, due to the illegitimate actions of a prior Republican-led Senate, we have an extraordinarily partisan high court that is openly seeking to keep Democrats from enacting their agenda. And they now have the votes to do it.
If the high court is going to decide cases based on partisan interests rather than the law, then let’s enact reforms to provide a chance for the public to have a say in that. Democracy is about giving the people a voice. We’ve exempted the Supreme Court from the checks that things like elections, term limits, and ethics rules impose on the legislative and executive branches of government because we envisioned that would ensure their independence. But the increasingly partisan nature of Supreme Court appointments has undermined any sense of independence. And when we see Supreme Court justices attending political conferences and making injudicious comments on a whole host of political matters, Americans have every reason to view the court as little more than a powerful, political, and unaccountable body.
It doesn’t have to be that way. Congress has the constitutional authority to determine the number of justices and the rules that govern their activities, their appointment process, the terms of their appointments, and the ethical rules that govern their activities.
Chief Justice Roberts appears unwilling or unable to recognize the degree to which the radicals who now dominate his court, and the illegitimate process that elevated them to power, have undermined the court’s reputation. Until something changes, opinions of the high court will only continue to fall. And it won’t be the public at fault.
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