A Scourge Against Justice


Let us not launch the boat ...
Valued Senior Member

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.


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
Invalidation | Affirmation


Alito on Dobbs: Jon Richards, 25 June 2022

There is this:

By shielding Donald Trump from standing trial before a jury in two of his felony cases, Trump's three appointments to the Supreme Court, along with the even more MAGA Justices Alito and Thomas and Judge Aileen Cannon, have already irreparably interfered in the 2024 election. Most importantly, when we finally do get the immunity ruling in the days or more likely weeks ahead, it will set the stage for a historic crisis. We will face an irreconcilable showdown between the normal operation of the criminal justice system (which should find Trump in pretrial and trial proceedings for his January 6th crimes over the next five months) and the normal functioning of presidential elections (which should find him campaigning full-time during those months).

Furthermore, proceeding with Trump's trial in a timely fashion would supercharge pre- and post-election claims that the election was not free and fair. Yet not holding the trial before the election would surrender the imperative for voters to know the full extent of Trump's legal accountability for the insurrection. Indeed, if you watch focus groups, or talk to voters who don't live in our 24-7 political news ecosystem, you will find that (1) they take Trump's criminal conviction for 2016 election interference extremely seriously; (2) conversely, many have internalized the failure to hold Trump accountable for the insurrection as evidence that his crimes there were not as serious as they appeared, and (3) many believe Democrats bear responsibility for the failure to hold him accountable for the attempted coup.

It didn't have to be this way: had the Republican majority on the Court not intervened at the last minute, we would already have a verdict in the case. We would also have a verdict if they had not rejected Jack Smith when he asked them to decide the same issues last December.

An omitted footnote simply establishes that Michael Podhorzer↱ does not expect the Supreme Court will award Donald Trump the immunity he seeks. It's actually the beginning of a fairly long blog post; the blog itself is called Weekend Reading, so, yeah. But it runs through what ought to be familiar territory, such as the "Brooks Brothers Riot" of 2000, the role of the Federalist Society in promoting a conservative judiciary, but also some of the narrative detail we don't often consider. And while soem of the themes are difficult to suss out from half a world away↗, they're also hard to explain to many Americans simply because they presume, as an article of faith, we are above such affairs. Well, sort of. They are happy to imagine all sorts of evil women, nonwhite infidels constantly about some intricately dysfunctional scheme, but the clownish simplicity of buying off Clarence Thomas, for instance, or even his wife, is a two-strike pitch: Strike one, Americans are above all that; strike two, I mean, c'mon, even still, how ridiculous does this kind of clownish caricature plot sound?

But the result, over time:

When SCOTUS made elections more democratic it was by large majorities, and almost exclusively by the Warren Court. However, Republican-appointed majorities have made our elections less democratic on a straight partisan basis repeatedly over the last 24 years. Beginning with Bush v. Gore, on at least a dozen occasions, SCOTUS has radically altered election law on a partisan 5-4 or 6-3 basis – often overriding bipartisan legislation enacted by Congress, and often relying on spurious facts or questions not even presented in the cases.

The following is based on the 30 most important election-related cases decided by SCOTUS, beginning with the Warren Court, and relies on the authoritative Supreme Court Database which indicates whether a ruling was “liberal” or “conservative.”

All six such decisions made by the Warren Court consistently made elections more democratic, establishing principles like “one person, one vote.” All of them were consensus decisions, by which I mean they were made by justices appointed by both parties. That shifted a bit in the Burger court, with about half of the cases deemed conservative and half liberal, but nearly all were consensus decisions.

But then the Rehnquist and Roberts courts, in nearly every instance on a straight party-line vote, completely remade federal elections to advantage Republican interests .... And, remember, all but one of the Roberts Court's 6-3 decisions came after Barrett joined the Court. The only other one was when Justice John Paul Stevens voted with the Republican appointees to sustain a state voter ID law, a decision he subsequently came to regret publicly.

One thing that is difficult to distill is the manner in which certain conservatives ought to be particularly aghast, and perhaps even ashamed; it has to do with an old discussion called "liberal judicial activism", which accused "legislating from the bench". Podhorzer recalls that the Court, "Using shamelessly spurious reasoning, as if to taunt us with their naked power, the majority literally invented the 'doctrine of equal [state] sovereignty'", and that is the kind of judicial activism Republicans so frequently accused, twenty to thirty years ago.

(It also happened in Dobbs, when the Court invoked the Major Questions Doctrine; cf., Deacon and Litman, 2023↱, "After the Supreme Court's October term 2021, the 'new' major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation …". While Podhorzer's focus is on the judiciary, voting, and democracy, the abortion example reminds the degree to which conservative judicial activism now shapes American law and policy.)​

The conservative Court can be seen as humiliating its conservative advocates, except here we encounter a question of stratification: Conservative elite are not humiliated, because this was the grift; the question falls, then, to the rank and file, the average joe on Main Street in Flyover, Middle America. Maybe they really are just a bunch of suckers, or perhaps the judicial activism pitch was the kind of thing they were happy to hear because it's what they wanted to hear; it's not impossible they might think they're in on the grift.

Or there is another way of looking at it: We've kind of known, the whole time; the Safford and Ricci were controversial carveout↗ decisions that marked Chief Justice Roberts' first term. Political agendas are what they are, but the Chief Justice's first concern is the prestige and power of the Supreme Court, and throughout his tenure he has managed to denigrate and diminish the conservative pretense against judicial activism. And maybe that seems like a small thing, but it had much influence, inflicted much harm, and was likely never true.

It's one of the details that can be hard to perceive in the ping-pong back and forth↗ of superficial politics: The current Supreme Court majority has achieved powerful results, but in doing so invalidated the politic that advanced it to power.


Deacon, Daniel T. and Leah M. Litman. "The New Major Questions Doctrine". Virginia Law Review, v.109, n.5. 8 September 2023. VirginiaLawReview.org. 19 June 2024. https://bit.ly/4co6e5k

Podhorzer, Michael. "Tipping the Scales: The MAGA Justices Have Already Interfered with the 2024 Elections". Weekend Reading. 19 June 2024. WeekendReading.net. 19 June 2024. https://bit.ly/4eu4WHM