As Congress members fan out from Washington this week to hit the midterm campaign trail, the next Supreme Court term is lurching into gear. In the civics-textbook account of things, this is made to seem like a decorous upgrade in the conduct of the people’s business: the hectic and unruly discord of congressional lawmaking ceding ground to the duly credentialed and circumspect apostles of judicial review.
Of course, that’s never been how anything works on the high court, and that’s arguably never been less the case than at the present disastrous juncture in our public life. With its ironclad and Trump-secured 6-3 right-wing majority, the Supreme Court has reverted to long-standing form as the nation’s premier bastion of reactionary social and political-economic policy. It has already laid waste to reproductive choice and bodily autonomy in last summer’s Dobbs decision, set out to dismantle a good deal of the regulatory authority of the federal government in the West Virginia v. EPA ruling, and has voting rights again in its sights in this term’s Moore v. Harper case. In the process, it’s relinquished the last remaining semblance of sober and impartial legal reasoning as it’s become an all-but-official subsidiary of the nation’s high-powered and hard-right broker of originalist jurisprudence, the Federalist Society.
The high court has also come to mimic the worst standards and practices of Congress in another way: It routinely employs its power and prestige to conceal, downplay, and brush aside compromising conflicts of interest, particularly those stemming from the justices’ spouses and families. Associate Justice Clarence Thomas’s wife, Ginni, is a walking symbol of such conflicts, as her recent testimony before the Select Committee on January 6 made all too plain. But other, lower-profile conflicts assail the court’s right-wing majority, from Chief Justice John Roberts’s marriage to a corporate-law headhunter to Associate Justice Amy Coney Barrett’s union with a partner in a white-collar criminal defense firm. Rather hilariously, Barrett seemed intent on sidestepping the whole issue in her ethics disclosure forms by simply redacting the name of her husband’s firm, SouthBank Legal.
Indeed, the court’s overall strategy to redeem its badly battered credibility and public standing seems to be to remind the nation of its own grandiose sense of self-importance, as it selectively blots out the damning evidence of its ideological and ethical waywardness. In a recent interview with The Wall Street Journal, Associate Justice Samuel Alito—the author of the majority opinion in Dobbs—declared that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity is crossing a line.” Roberts made much the same plea in a recent speech in Colorado Springs.
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These sorts of appeals come off as disingenuous at best; at worst, they suggest the blame-shifting diversionary overtures favored by venal lawmakers and CEOs caught in the public spotlight. “Justice Alito seems to think the problem is people questioning the court’s legitimacy,” notes Brianne Gorod, chief counsel for the Constitutional Accountability Center. “But the real problem is what the court itself is doing to undermine its own legitimacy. The court undermines its own legitimacy when the justices claim to follow the text and history of the Constitution, but then fail to engage with that text and history and instead privilege their own ideological preferences.”
The court has largely forfeited the reflexive public deference that Alito and Roberts crave by cleaving to the pretzel logic of landmark originalist decisions such as Dobbs, or the 2008 District of Columbia vs. Heller ruling establishing the fictitious constitutional right of individual gun ownership. “I think of Dobbs as a sort of reductio of the current court’s fetishistic attachments to ‘originalism’ as method and ‘traditionalism’ as content,” says Georgetown University Law professor Robin West. “Nothing is as traditionalist as chastisement, also known as spousal battery, or coverture, also known as erasure of a woman’s entire panoply of legal rights upon marriage, or ‘marital rights,’ also known as marital rape.” West further notes that the precedents Alito cites in Dobbs can justify a whole range of actions suppressing gender and racial equality, as traditional prerogatives are reconfigured as “liberty” rights. “Once an originalist understanding of the Constitution is attached to a ‘traditionalist’ understanding of the liberty protected by the 14th Amendment, Edmund Burke has won the day: The Constitution is hewed to the most regressive parts of our history and current culture, and the antipathy between the Constitution and its protections, on the one hand, and progressivism and its egalitarian and communitarian aspirations, on the other, is laid absolutely bare.”
There’s a perverse consistency in the justices’ assertion of de facto immunity from attacks on their legitimacy: In preaching an apolitical and ahistorical vision of constitutional jurisprudence from the high court, Roberts is reprising the saucer-eyed procedural reasoning of the antidemocratic majority opinions he authored in the 2010 Citizens United ruling, overturning federal regulations of most dark-money campaign donations, and in 2013’s Shelby v. Holder, striking down the preclearance provisions of the Voting Rights Act. Both opinions relied on gnat-straining textual interpretations that defied historical truth: Roberts held in Citizens United, without any supporting research, that it was simply implausible for vast outlays of cash to distort broader lawmaking mandates, and declared by fiat in Shelby that racialized voter suppression was no longer a serious issue in the states that fell under the jurisdiction of the Voting Rights Act.
It’s also telling that the purveyors of the court’s originalist dogma offer a more gleefully confrontational account of their mission when they speak before politically simpatico gatherings. This summer, in an address before the University of Notre Dame Law School’s Religious Liberty Initiative at the Palazzo Colonna in Rome, Alito jokingly declared that in Dobbs he had composed “I think the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders,” name-checking Boris Johnson, Prince Harry, and Justin Trudeau, among others. It’s more than a bit of a stretch for a high court jurist to pronounce attacks on the institution’s integrity and legitimacy to be out of bounds when he spends his off-hours doing ideological victory dances at the expense of world leaders arrayed on the other side of his opinions.
“There’s a sort of sense that they’ve found the perfect formula, where a revolutionary cadre of Federalist Society lawyers can take a vanguard view of law and politics that’s not even held by most Republicans,” says Joseph Fishkin, professor at the UCLA School of Law and co-author of a recent history of the high court’s long-standing antidemocratic pedigree, The Anti-Oligarchy Constitution. “The gleefulness about it is because this is a very successful formula. So the question is, what are the potential avenues of vulnerability for this formula? It’s not easy, but it has to be that American politics can get reoriented around opposition to what the Supreme Court is doing.”
This was a central pillar of left organizing during the 1930s, and culminated in Franklin Roosevelt’s plan to pack the court—a proposal that lost out in Washington, but succeeded in reorienting the court’s majority and rescuing the New Deal’s body of social-democratic reforms. Anti-court sentiment was also, Fishkin notes, the galvanizing project behind the American right’s grassroots uprising in the 1960s and ’70s, as conservatives targeted the alleged liberal social-engineering excesses of the Warren court and the Roe decision upholding a woman’s right to reproductive choice.
Of these two precedents, Fishkin suggests, “the more plausible model is probably from the 1930s, where you had a president and Congress producing a set of moves to curb the conservative court and maybe legislating that some things are out of the court’s jurisdiction—or else putting more justices on the court. Those are tools you can use when you don’t have the money and the elites.”
Put another way, the political putsch now being mounted by the Roberts court can only be countered by a campaign of political organizing vindicating our imperiled democracy—and this strategy can and should call the court’s legitimacy into question.
“The only way out is through politics, not through ever-better arguments in front of a court tied to ludicrous and cruel conceptions of interpretation, of history, and of community,” West says. “But it’s also not through futuristic arguments to some future sympathetic court. We have to stop thinking of the ccourt and the Constitution both as the way forward toward progressive political ends. They’re not—obviously not this [court], but not any other. The way out of the current mess we’re in is a different Congress, and a different politics. If Dobbs doesn’t end the liberal-left romance with adjudicative constitutionalism, nothing will…. But maybe it will. That would be a silver lining.”
