Justices love to proclaim their impartiality, all evidence to the contrary.
By Adam Serwer
Justice Amy Coney Barrett is offended by those questioning the impartiality of the Supreme Court.
“This Court is not comprised of a bunch of partisan hacks,” she announced at a recent event at the University of Louisville’s McConnell Center, named for Senator Mitch McConnell. “Judicial philosophies are not the same as political parties.”
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For Barrett to insist on her nonpartisanship at a center named for the legislator whose procedural hardball was instrumental in securing her seat suggests that, although Barrett’s peers have praised her legal mind, her sense of irony leaves something to be desired. But then, it’s not much more absurd than her colleague Justice Brett Kavanaugh insisting on his impartiality days after vowing revenge against the left while under oath. Similarly, Justice Clarence Thomas recently warned against “destroying our institutions because they don’t give us what we want, when we want it,” complaining that “the media makes it sound as though you are just always going right to your personal preference.” Next month, Thomas will give a keynote address at a symposium celebrating his years on the Court at the right-wing Heritage Foundation, alongside McConnell.
This insistence—that justices are simply following the law—is a common rhetorical tool in the partisan conflict over the Court. The most partisan judges will not admit to being hacks, instead framing their actions as consistent with the rule of law. No one wants to admit to being a hack; even hacks have to sleep at night, and resting is much easier if you’ve convinced yourself that you are an infallible tribune guided by the infinite wisdom of the ages.
The current makeup of the Roberts Court is itself the outcome of a partisan battle that has spanned decades, one in which the conservative legal movement has won a tremendous victory that is certain to shape American life for generations to come. Anticipating their future triumphs, though, the very justices championed by this movement have taken to denying both this victory and its implications, insisting that this casino is resolutely opposed to gambling—in fact, it’s not a casino; it’s a church, and its critics are engaging in acts of civil blasphemy. With absolute control of the Court, the conservative legal movement’s main obstacle is the fact that its extreme views are unpopular. When those views are imposed on the public in the future, the justices want to be able to claim that their decisions are the result of impartial legal reasoning, rather than motivated reasoning by committed right-wing ideologues. But that doesn’t make the proposition that the justices are free of partisanship any less ridiculous.
The ailing popular perception that the justices are above partisanship has persisted in part because of structural reasons that have kept Democratic voters from being radicalized against the Court the way Republican voters have been. The elite legal community relies on the prestige of the Court, which makes many prominent liberal lawyers hesitant to offer harsh criticisms of its conduct. Elite law professors, elite litigators, and even those who hope to serve in Democratic administrations have an interest in downplaying the Court’s radicalism and partisanship. Because these elite lawyers are a powerful Democratic Party constituency, strident criticisms of the Court are left to those without similar ambitions or political connections.
Democratic appointees have similar incentives themselves—especially on a Court where they are so outnumbered. As justices, they want to maintain the prestige of the Court, and they also cannot afford to fully alienate their conservative colleagues.
Justice Stephen Breyer, whose refusal to retire raises the possibility of a 7–2 conservative Court, recently wrote that “it is a judge’s sworn duty to be impartial, and all of us take that oath seriously.” I have little doubt that the justices are so full of self-regard as to believe that they are impartial, but the public is under no obligation to take this seriously. The justices’ actual behavior is the obvious rebuttal. Furthermore, the shape of the Court today is the direct result of decades of partisan politics. That Thomas sees any potential Democratic response to decades of Republicans pressing for advantage on the Court as “destroying” the institution is itself a partisan read of the politics of the Court, in which constitutional hardball is praiseworthy for Republicans and destructive for Democrats.
In the 1970s, in the aftermath of Supreme Court decisions on due process, segregation, abortion, Church-and-state separation, business regulations, and pornography, conservatives sought to recapture the Court and bend it to their will. Conservative legal organizations helped groom generations of conservative attorneys whose decisions would more often reflect the political and policy views of the Republican Party. Where judges and justices have diverged from those preferences, the conservative movement has reacted with outrage.
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As the political scientist Steven Teles writes in The Rise of the Conservative Legal Movement, in 1972 Patrick Buchanan, then an aide to President Richard Nixon, exulted that “the president has all but recaptured the institution from the Left; his four appointments have halted much of its social experimentation; and the next four years should see this second branch of government become an ally and defender of the values and principles in which the President and his constituency believe.”
That turned out not to be true at the time—a fact that would inspire the rise of the powerful conservative legal infrastructure that has led to a 6–3 majority on the Supreme Court, despite the fact that a Republican president has won the popular vote only once in three decades. As Teles writes, the failure of Nixon appointees to “transform the Supreme Court taught conservatives that electoral success was not enough.” The immensely powerful Federalist Society was founded as part of an effort to create a right-wing alternative to what conservatives saw as the dominance of legal liberalism, forming a community where conservative legal philosophy could be debated and developed, from which could emerge activists, attorneys, and judges who would ultimately shape the law and the courts. In short, a movement.
Take Clarence Thomas. Then-President George H. W. Bush chose Thomas in part to shore up his right flank in the aftermath of his appointment of Justice David Souter, who would end up siding more often with Democratic appointees. In that respect, Thomas has not disappointed the activists who ensured his placement on the Court; he called for Roe v. Wade to be overturned after less than a year on the bench. As Jeffrey Toobin writes in The Nine, when Sandra Day O’Connor retired, in 2005, the conservative activist Manuel Miranda began warning George W. Bush against appointing his attorney general, Alberto Gonzales, to the Court. “It’s really no more Souters and no more Kennedys. And that does not add up to an appointment for Gonzales,” Miranda wrote. Toobin adds that Miranda “helped popularize the devastating quip ‘Gonzales is Spanish for Souter.’” The point here is as clear as the Caribbean in the summer: Only justices who will reliably ensure the outcomes desired by the conservative movement can be appointed.
By “no more Kennedys,” Miranda meant Anthony Kennedy, a conservative justice like O’Connor who would occasionally side with Democratic appointees in big cases. Samuel Alito, Bush’s chosen replacement for O’Connor, had worked in Ronald Reagan’s Justice Department, where, in a 1985 abortion-rights case, he wrote a memo advising that “we should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.” Alito isn’t the only Supreme Court justice with a paper trail that illustrates long-held political views; as a young attorney, Chief Justice John Roberts wrote a memo complaining that the Voting Rights Act’s antidiscrimination provisions were too strong, and then gutted them in an opinion as chief justice without ever describing what part of the Constitution they violated.
The public is meant to look at these justices’ records on abortion and voting rights and assume that it is just a coincidence that their legal reasoning lines up with their policy preferences.
Barrett is partially right in one respect: The justices are not mere partisans. They occasionally diverge from one another on matters of legal philosophy and political preferences (this is also true of, say, senators). Roberts, in particular, evinces a concern for procedure and the Court’s legitimacy that leads him to occasionally side with the Democratic appointees. Justice Neil Gorsuch’s textualism can lead him to unusual places, such as his decision to uphold the Civil Rights Act’s protections for transgender people. In the majority of big cases, however, the justices do what they are expected to do—and on the occasions when they don’t, the conservative movement reacts with frothing anger.
But as the recent shadow-docket decision on the Texas abortion law shows, now that conservatives have a 6–3 majority, they can afford to lose an idiosyncratic justice who’s following his conscience. That was the case in the 5–4 Texas decision, as Roberts joined the three Democratic appointees in dissent, but the remaining five conservatives were nevertheless able to allow a clever procedural scheme to nullify a constitutional right. It is entirely a coincidence, we are to believe, that in this case the right in question was whether to terminate a pregnancy—one of the rights that the conservative legal movement was founded to oppose.
The day Thurgood Marshall retired, he issued a furious dissent to a decision that strengthened the death penalty. “Power, not reason, is the new currency of this Court’s decisionmaking,” Marshall wrote, dissenting from the majority opinion in Payne v. Tennessee. “Neither the law nor the facts … underwent any change in the last four years, only the personnel of this court did.” The same is true of every precedent overturned by the Roberts Court, from voting rights to labor law.
Make no mistake, I am not criticizing the justices or the conservative legal movement for pursuing their political project with zeal, as repulsive and immoral as I find many of their objectives. They are entirely entitled to do so, through whatever legal means available to them. This is how democracy works—people with a common goal work together to realize it. Their opponents, if they want to have a similar influence on the Court, would do well to learn from them.
What I take exception to is the demand from judges and justices that the public acquiesce to their self-delusion that they are wise sages who hold themselves above the vulgarities of partisan politics, even as they deliver sweeping victories to a conservative movement and Republican Party that have worked for half a century to achieve those victories.
The conservative movement seems to have secured the Court for a generation at least, but that is insufficient. The right-wing justices also demand their decisions be seen as the outcome of dispassionate legal reasoning, not partisan warfare. They do not want the legitimacy of their proclamations, or the institution itself, questioned to the point where their liberal counterparts might consider paths as drastic and radical as the ones they took to get here. They wish to be admired and celebrated as the sagacious intellectual giants they believe themselves to be.
Having reached the heights of the legal profession, it must be deflating for the justices to recognize that the public is not obligated to reflect their self-regard. In truth, the public is simply reciprocating the contempt that the justices show for the people every time they insist on lying to their face about how the Court works, or why it looks the way it does today.
https://www.theatlantic.com/ideas/archive/2021/09/lie-about-supreme-court-everyone-pretends-believe/620198/