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A Legitimacy Crisis of the Supreme Court’s Own Making

Brennan Center for Justice – Last term, the justices showed little concern for the public’s trust in them: “Chief Justice John Roberts said at an event last week that he doesn’t understand current questions about the Supreme Court’s legitimacy. “The [Court’s] decisions have always been publicly criticized,” the chief justice said, but it is a “mistake” to view those critiques as questioning the Court’s legitimacy so long as the Court keeps doing its job, which is “to say what the law is.” But is the Supreme Court actually doing its job? Courts are supposed to operate under rules and norms that discourage overreach and encourage public confidence. By deciding questions it doesn’t have to, making major decisions via unexplained orders, and tainting key rulings with ethical lapses, last term’s decisions give the public reason to think the Court is not saying what the law is, but what the justices personally prefer it to be. In Roberts’s concurring opinion in Dobbs v. Jackson Women’s Health Organization, which took away the right to abortion, he wrote that “if it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” Yet on numerous occasions last term, the Court did just that, answering questions it was not asked on the way to fulfilling long-standing conservative policy goals in ways that make the justices look much more like players in the game than referees. In Dobbs, for example, Mississippi first told the Court it could uphold both Roe v. Wade and the state’s abortion ban. Mississippi only changed its argument after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, and the new Court majority embraced this gambit. And in West Virginia v. Environmental Protection Agency, the Court gutted the ability of the EPA and other federal agencies to do their jobs by ruling on a Clean Power Plan the Biden administration had already said it had no intentions of putting into effect. If one way that judges enhance their legitimacy is by “render[ing] judgments through written opinions that explain their reasoning,” as the chief justice has said, then it is worth noting that many of the Court’s most significant decisions last term came via unsigned orders with little to no explanation. The Court used its “shadow docket” to reverse lower courts’ decisions about redistricting, pandemic mandates, and abortion access in ways that furthered conservative or Republican interests without full briefing, oral argument, or much reason for the public to understand the decisions as motivated by anything but partisanship.

It also doesn’t help the Court’s legitimacy that high-profile decisions were tainted by major ethical lapses. In January, the Supreme Court decided a case about the release of White House communications related to the January 6 insurrection. Justice Clarence Thomas issued the lone dissent in that case, which the public found out months later likely involved text messages from his wife, Ginni Thomas. (Through this incident, the public was once again reminded that the Supreme Court is the only court in the country without an ethics code, even though it is within the justices’ power to adopt one.)…”

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