When it comes to the U.S. Supreme Court’s institutional credibility, center-left justices have been unsubtle in their warnings. For example, in December 2021, during oral arguments in Dobbs v. Jackson Women’s Health Organization — the case that would ultimately serve as a vehicle to overturn Roe v. Wade — Justice Sonia Sotomayor asked a memorable rhetorical question.
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked. “I don’t see how it is possible.”
Six months later, when the Dobbs ruling was formally released, Sotomayor joined with Justices Stephen Breyer and Elana Kagan, writing in a dissent that the decision “undermines the Court’s legitimacy.”
As we’ve discussed, it’s a word that’s come up quite a bit in recent months. With the institution being pushed dramatically to the right by Republican-appointed justices — this is, by some measures, the most conservative court since the early 1930s — critics of the court’s direction haven’t just questioned the majority’s judgment, they’ve also raised concerns about the toll on the branch’s legitimacy.
A couple of weeks ago, Kagan advanced the conversation during remarks 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 trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Kagan said.
Justice 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 a comment Tuesday to The Wall Street Journal, Justice Alito said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
The article did not quote the far-right jurist further — I suspect he didn’t elaborate — though the ambiguity leaves some unanswered questions. If Kagan and others have crossed “an important line,” what exactly does Alito see as the appropriate consequence? Is he of the opinion that people are free to disagree with the high court, but not question its legitimacy?
What’s more, Alito hasn’t exactly presented a defense of the institution. Indeed, in his comments to The Wall Street Journal, he didn’t even make an argument, per se. The justice’s pitch, in effect, is that people shouldn’t question the integrity of the court or its members because, well, just because.
This dovetails with Chief Justice John Roberts’ recent rhetoric, in which he suggested that the court’s critics are calling the legitimacy of the Supreme Court into question simply because they’re upset with a provocative ruling.
But circling back to our coverage that followed the chief justice’s remarks, both Alito and Roberts appear unaware of the developments that brought us to this point.
Some of the blame should be directed at Senate Republicans, many of whom launched a deliberate, years-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 refuse, indefinitely, to confirm a Democratic president’s Supreme Court nominees, regardless of election results, and regardless of prospective nominees’ merits.
In early 2017, GOP senators completed the theft of a seat on the high court. In 2018, those same senators confirmed a tarnished nominee with damaged credibility. In late 2020, ignoring the principles they pretended to take seriously four years earlier, Republicans confirmed another nominee while early voting was underway.
The message couldn’t have been clearer: GOP senators don’t see the Supreme Court as a politically independent institution worthy of broad respect, so the public shouldn’t either.
But as The Washington Post’s Ruth Marcus explained in a recent column, the justices’ own rulings have been every bit as important.
The inflamed public reaction stems also from the fact that the law changed because the court’s membership 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 stacked court has — time after time, but most flagrantly in overruling Roe v. Wade — abandoned normal rules of restraint, twisted or ignored doctrine, and substituted raw power to achieve its desired result.... And this is how the institution undermines its own legitimacy. If the court behaves like just another political body, it loses the only power it has, of achieving public acceptance of its rulings.
When Republican-appointed justices ignore precedents they’d previously said they’d uphold, it undermines the court’s legitimacy. When Republican-appointed justices deliver overtly political speeches, it undermines the court’s legitimacy. When Republican-appointed justices take aim at fundamental American principles, such as the separation of church and state, in displays of raw power, it undermines the court’s legitimacy.
Alito is apparently of the opinion that the current court’s critics have crossed an important line. But in reality, if anyone’s gone too far in an irresponsible direction, it’s Alito.