Please Register or Log in to view the hidden image! Even the Supreme Court can start to sound like an internet argument. Attorney Marc Elias↱ spends some words trying to observe a basic distinction: In 1992, after twelve consecutive years of Republican presidents, the Supreme Court heard a sweeping abortion case, Planned Parenthood v. Casey. Though many expected the conservative majority to overturn Roe, a conservative plurality backed away. Justice David Souter explained the reason from the bench: The promise of constancy, once given, binds the Court for as long as the power to standby the decision survives and the understanding of the issue has not changed so fundamentally is to render that commitment obsolete. A willing breach of it would be nothing less than a breach of faith and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. Roberts is a brilliant jurist. He is an astute observer of politics and public sentiment. He knew the risk of overturning Roe last year. He was warned of the consequences for the Court as an institution. But for him, and the other conservative members of the Court, overturning Roe was worth it. It was, after all, the reason most of them were nominated in the first place. The announcement of Dobbs v. Jackson Women's Health Organization last year was the equivalent of hanging a "mission accomplished" sign across the front steps of the Court. That is why I was surprised when I read that Roberts was "disturbed" by the criticism the Court now routinely receives for politicized decisions. I had assumed that Roberts knew that overturning prior Supreme Court affirmative action jurisprudence and using a made-up doctrine to strike down student debt relief was going to harm the Court's public standing — even among people who are otherwise skeptical of both programs. I believed that he must have realized that allowing a made-up, contrived case to proceed to the nation's highest court solely to belittle gay marriage would reflect poorly on the Court. I believed that Roberts knew better until I read his last words of the term in which he blamed the dissent for the Court's current predicament. Now I worry that he didn't know the damage he and the other conservatives were doing. I fear he still doesn't. The alternative is that the chief is fully aware of the damage the conservatives are doing to the Court, but he finds it easier to give them a pass and blame the liberals. But that's the thing. It's the twentieth paragraph when Elias gets to the part about how he "believed that Roberts knew better". As it is, what he believed, and what he fears, and the implicit alternative only take nineteen paragraphs to set up because it is the kind of distinction no attorney or historian should ever need to explain. Still, it is also worth observing that Elias' telling runs through familiar territory. And if something unfamiliar is a chief justice expressing concerns that "seemed unusually defensive for a chief justice who stands solidly in the center of a right-lurching Court", our familiarity is with that context. "Attacking the Court for overstepping its limited judicial role," Elias reminds, "was a hallmark of the conservative legal movement for the 50 years before former President Donald Trump … solidified a hard-right 6-3 majority." This was the infamous lamentation against, "Judicial activism, as it was called … the right-wing’s primary critique of Chief Justice Earl Warren’s Court." And if this complaint "was at the core of the conservative attack on Griswold v. Connecticut (1965) and Roe v. Wade (1973)", and the "main weapon Justice Antonin Scalia and other conservative justices wielded", it only took the very judicial activism conservatives had decried to slash away at Roe and threaten Griswold. Such an easy breach of faith, so willing and even anxious, and for Chief Justice Roberts it seems the way to repair the damage is simply to pretend it never happened. So we might think back on those decades of rightist whining about judicial activism, and recognize that part of the reason such outcomes as the Roberts Court has inflicted are only any sort of surprise because decency would have pretended it inappropriate to suggest such low behavior. And the Chief Justice would seem to maintain that expectation. Still, should John Roberts pretend to worry about "misperception" that might be "harmful" to Court and nation, the most obvious retort is to remind of standards pertaining to the mere appearance of impropriety, and that the "institution and our country" would be better off if the majority stopped showing off its appearances of impropriety. And the proverbial everyone else, without whom such expectations have no sway, have failed to learn the lesson for so long that it is worth wondering if it's not really a point of learning, but what they're willing to trade in order to feel like they are part of something. There really isn't any point in wondering what the hell they were thinking, since they didn't care, either. ____________________ Notes: Elias, Marc. "John Roberts' Last Word Is Not the Final Say". Democracy Docket. 6 July 2023. DemocracyDocket.com. 24 July 2023. https://bit.ly/43EJAkj
