When an unelected conservative majority simply imposes the right’s policy preferences by fiat, there is little reason for the rest of us to respect the Court’s authority.
Nathan J. Robinson
here has always been a certain amount of artifice in what Supreme Court justices do. Whether they are conservatives or liberals, they pretend that their personal moral and political values are irrelevant to their votes, and that they are just Following The Law. They delude themselves into thinking they are mere “umpires” who might have differing legal theories but are certainly not partisan. They try to get the public to accept this myth, because if we did think of the justices as mere “robed legislators,” there would be little reason to treat their decisions with deference and respect. It is necessary for the court’s legitimacy that the public not see its rulings as the mere imposition of certain partisan policy preferences by an unelected council who are only in their positions for arbitrary reasons (e.g., because of the timing of another justice’s death).
The desire to preserve the myth of a legitimate court was one reason Ruth Bader Ginsburg refused to retire. She felt it “belittles and diminishes the court to have retirements so obviously timed for political reasons.” It also explains why some liberal legal professionals praised the nominations of Brett Kavanaugh and Amy Coney Barrett to the Supreme Court. Their politics and personal beliefs were seen as irrelevant. Instead, their qualifications and intelligence were what mattered. Yale Law School’s Akhil Amar predicted that Kavanaugh “will be a pro-intellectual and anti-polarizing force on the Court.” The Washington Post ran a law professor’s op-ed called “I’ve known Amy Coney Barrett for 15 years. Liberals have nothing to fear.” The author argued that as a justice, “Barrett would not draw on any extralegal source of authority—be it religious, moral or political.”
These predictions were obviously lies or unbelievably naive delusions. As I documented at great length at the time, both Kavanaugh and Barrett both had long track records of making conservative decisions that obviously incorporated their value judgments. The justices themselves, during their confirmations, pretended they weren’t going to be partisan (Kavanaugh was said to have called Roe v. Wade “settled law” in an August 2018 conversation with Sen. Susan Collins; yet the New York Times, reporting on his confirmation hearings a month later, mentioned documents revealing that Kavanaugh had, in the past, questioned whether Roe was indeed “settled law.” In any case, he clearly didn’t actually think the “important precedent” was worth upholding—although that somewhat paled next to the many other egregious instances of outright perjury in his testimony defending himself against allegations of past sexual assault). The pretense of neutrality was obviously untrue. Donald Trump had publicly promised that the justices he appointed would overturn Roe. It’s reasonable to doubt that any statement uttered by Donald Trump could ever be accurate, but this was one pledge he followed through on. Lindsey Graham, in his recent debate with Bernie Sanders (in which Sanders cleaned Graham’s clock), boasted openly about having a “conservative” Supreme Court. So much for objective “umpires” merely applying the law.
https://www.currentaffairs.org/2022/06/the-supreme-court-has-destroyed-its-legitimacy
