As the Supreme Court’s reputation begins to falter, Alito pushes for a flawed defense

When it comes to the US Supreme Court’s institutional credibility, the centre-left judges have been unsubtle in their warnings. For example, in December 2021, Judge Sonia Sotomayor posed a memorable rhetorical question during oral arguments in the Dobbs v. Jackson Women’s Health Organization case — the case that would ultimately serve as a vehicle to overthrow Roe v. Wade.

“Will this institution survive the stench created by the public perception that the Constitution and its reading are just political acts?” she asked. “I don’t understand how that is possible.”

Six months later, when the Dobbs ruling was officially released, Sotomayor joined Justices Stephen Breyer and Elana Kagan in writing in a dissent that the decision “undermines the legitimacy of the court.”

As we’ve already discussed, this word has come up quite a bit over the past few months. After the institution was dramatically nudged to the right by Republican-appointed judges — this is in some ways the most conservative court since the early 1930s — critics of the court’s direction have not only questioned the majority’s verdict but also raised concerns about the toll on the legitimacy of the industry.

A few weeks ago, Kagan moved the conversation forward during a speech at Northwestern University School of Law. “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as an attempt to impose personal preferences on a society regardless of the law, then there’s a problem — and that’s when it there should be a problem,” Kagan said.

Judge Samuel Alito, the author of the Dobbs ruling, has heard the concerns – and he clearly has a problem with them. The Wall Street Journal reported:

In an op-ed on Tuesday to the Wall Street Journal, Judge Alito said: “It goes without saying that anyone is free to disagree with our decisions and to criticize our reasoning in any way he or she sees fit. But to say or imply that the court is becoming an illegitimate institution, or to question our integrity, crosses an important line.”

The article did not further quote the far-right lawyer – I suspect he did not elaborate – although the ambiguity leaves some questions unanswered. If Kagan and others have crossed “an important line,” what exactly does Alito see as the appropriate consequence? Does he think people are free to disagree with the Supreme Court but not question its legitimacy?

Besides, Alito wasn’t exactly defending the institution. In fact, he didn’t even make an argument per se in his comments to the Wall Street Journal. Basically, the tenet of the judiciary is that people shouldn’t question the integrity of the court or its members because, well, just because.

This fits with Chief Justice John Roberts’ recent rhetoric, in which he suggested that the court’s critics are questioning the legitimacy of the Supreme Court simply because they are upset about a provocative ruling.

But going back to our reporting that followed the Chief Justice’s remarks, both Alito and Roberts appear unaware of the developments that have brought us to this point.

Part of the blame should be placed on Senate Republicans, many of whom have launched a deliberate, year-long campaign to politicize the federal judiciary. The developments are still fresh in our minds: in early 2016, GOP senators refused to consider Merrick Garland’s nomination. In late 2016, several Senate Republicans said they would simply indefinitely refuse to confirm a Democratic president’s Supreme Court nominees, regardless of election results and regardless of the merits of the potential nominees.

In early 2017, GOP senators finalized the theft of a High Court seat. In 2018, the same senators confirmed a battered candidate with damaged credibility. In late 2020, Republicans confirmed another candidate while the early vote was underway, flouting the principles they professed to take seriously four years earlier.

The message couldn’t have been clearer: GOP senators don’t see the Supreme Court as a politically independent institution worthy of widespread respect, so neither should the public.

But as The Washington Post’s Ruth Marcus explained in a recent column, the judges’ own judgments were just as important.

The outraged public reaction also stems from the fact that the law has changed because the composition of the court has changed. The ruling in Dobbs v. Jackson Women’s Health Organization was the culmination of a political and politicized process to bolster the Conservative majority by any means necessary. And this high-profile dish has – time and time again, but most notably in calling Roe v. Wade overruled — abandoning normal rules of restraint, twisting or ignoring doctrine, and using brute force to achieve the desired result… And so the institution undermines its own legitimacy. If the court behaves like another political body, it loses the only power it has to get public acceptance of its verdicts.

When Republican-appointed judges ignore precedents they previously said they would uphold, it undermines the court’s legitimacy. When Republican-appointed judges make overtly political speeches, it undermines the court’s legitimacy. When Republican-appointed judges target basic American principles like the separation of church and state in a brute show of force, it undermines the court’s legitimacy.

Alito appears to think that critics of the current court have crossed an important line. But in reality, when someone has gone too far in an irresponsible direction, it is Alito.

Related: As the Supreme Court’s reputation begins to falter, Alito pushes for a flawed defense

Rick Schindler

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