Or, as Justice Amy Coney Barrett said last year while speaking to an audience at the McConnell Center at the University of Louisville, “this court is not comprised of a bunch of partisan hacks.”
That the justices are discussing the legitimacy of the Supreme Court in the open is reason enough for us to discuss the legitimacy of the Supreme Court as well. And what’s striking about the comment from Thomas in particular is how it roots the challenge to the court’s legitimacy in the inside baseball surrounding the leak rather than public discontent with its decisions that Kagan spoke about. In a similar disconnect, Roberts and Alito both take for granted the legitimacy of the Supreme Court and its decisions, as if its power were inherent to the institution — part of the natural order of things rather than something that’s been mediated by politics throughout the court’s history. Roberts even asserts the exclusive right of the court to say what the law is, as if the institution exists above and beyond the constitutional system, accountable to no one but itself.
Only Kagan seems to have any awareness that the court’s stature is a precious resource that can be lost if the institution runs too far away from the public, or if the court begins to treat the public and its representatives as mere subjects — bound to obey its judgments — rather than partners in the construction of constitutional meaning.
The truth, as Kagan said, is that the conservative majority has gone far past where the public is and that the public is increasingly skeptical of the court’s power and influence. Forty-seven percent of Americans say that they trust the judicial branch of the federal government, an all-time low according to a recent Gallup poll, and a whopping 58 percent of Americans disapprove of the way the Supreme Court is handling its job. Thirty-eight percent say that the ideological leaning of the court is “about right,” but 42 percent of Americans say the court is too conservative.
If the conservative justices weren’t so convinced of their own righteousness — if they weren’t so high on their own supply — they might be able to see that they’re playing a dangerous game. The court’s power, including the influence of each individual justice, depends on the consent of the public and its representatives. And while there is not, at this moment, a broad-based movement to bring oversight and accountability to the Supreme Court, it’s also not beyond the realm of possibility.
The Dobbs ruling was so unpopular that it pushed a majority of Americans to support court expansion, according to a Marquette University Law School poll. Two-thirds of Americans also want to impose term limits on justices, according to The Associated Press. One can only imagine how these numbers will look as the conservative majority continues to write Republican Party ideology into the Constitution using “originalism” or “textualism” or whatever other method the justices choose to reverse engineer their conclusions, as they are poised to do in this new term with cases on gerrymandering, voting rights, the environment and the rights of sexual minorities.
The conservative majority on the Supreme Court is more than ready to abuse its power and authority. The question is whether the American public is willing, through its representatives in Congress, to discipline the court — to remind it of the actual scope of its power and relegate it to a less central place in our constitutional order.