The Supreme Court’s 2023 Finale: It’s not the Conservative Justices who Deserve Scrutiny—It’s the Liberal Ones Who are Delegitimizing the Court

“People lie. And the people who judge, they lie the most”:

The line comes from an episode of The Good Wife, the hit CBS series which anatomizes the ethics of the professional liberal legal elite, but it could just as well have come from the real-life Supreme Court, since it’s a fair rendering of how the actual professional liberal legal elites there handled its 2022-2023 term and the one before.

The symptoms of the problem aren’t hard to find. Last Friday, writing for the majority in a case striking down the Executive’s power to unilaterally cancel student loan debt, a move which even some concerned liberals declared gave the president the powers of a king, Chief Justice John G. Roberts noted that “it has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” That same day, Associate Justice Elena Kagan wrote in her dissent from the student loan case that “in every respect, the Court today exceeds its proper, limited role in our Nation’s governance,” “reaches out to decide a matter it has no business deciding,” “blows through a constitutional guardrail intended to keep courts acting like courts,”  and “violates the Constitution” by “decid[ing] a contested public policy issue properly belonging to the politically accountable branches and the people they represent.” Not surprisingly, her words made headlines in sympathetic media and on the internet.

Kagan’s reasoning was that the Court erred in finding that states had “standing” to bring the case in the first place, and that since the Court is unelected it should be wary of overturning the will of branches of government that were. These were claims that the Chief Justice’s majority opinion as well as Justice Amy Coney Barrett’s concurrence answered, but Kagan’s reasoning seemed distant from her point: just a year earlier, she had also claimed that the Court was overstepping its authority—but for a different reason and in a case where the facts were diametrically opposed.

In this earlier and often-quoted dissent in Dobbs v. Jackson Women’s Health Organization, again joined by her two Democratic-appointed colleagues, Kagan wrote that the decision to overturn Roe v. Wade was “a radical claim to power” that “undermines the Court’s legitimacy” because “the Court arrogates to itself the authority to overrule established legal principles,” e.g. the precedents earlier Courts had set in earlier cases. She wrote this even though Roe v. Wade was the most obvious example in the twentieth century of the Court delegitimizing itself in the way she criticized in the student loan case: “decid[ing] a contested public policy issue properly belonging to the politically accountable branches and the people they represent,” e.g. ruling on abortion while it was still outlawed by 45 state legislatures and Congress had yet to legislate on the issue.

But exercising consistency, or reconciling plausible inconsistencies, aren’t the functions of Justice Kagan’s attacks. Nor is their function to draw careful distinctions between legitimate liberal-conservative legal divides over administrative law or precedent. Their function is to present a broad, easily quotable argument that the Court is over-exercising its authority and risking its legitimacy—and to recast the conservative majority’s nuanced and sometimes divergent arguments as radical departures from the law. And Justice Kagan’s Democratic-appointed colleagues take the same approach.

“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” Justice Sonia Sotomayor asked during oral arguments in Dobbs at the end of 2021, a comment which supportive media and academic commentary labeled, approvingly, “shocking.” Affirmative Action got the same treatment. When the Justices “return to fight old battles anew” Sotomayor wrote in her dissent to the decision on the issue this past week, “it degrades ‘the integrity of our constitutional system of government’” and breeds public distrust of the Court. In her dissent to the same ruling, Justice Ketanji Brown Jackson accused the conservative majority of overturning decades of precedent—a claim effectively answered by Chief Justice Roberts in a case in which, again, the perception of overreach became more important than the historical facts.

But the Liberal justices’ line of attack isn’t limited to opinions or even to oral arguments, where these justices also spoke the most in the past year. They’ve taken their case out of the courtroom and directly to the public. According to Kagan, speaking at an event last September and echoing remarks she’d made earlier in the year, “When courts become extensions of the political process, when people see them as extensions of the political process…that’s when there’s a problem.” That same month, speaking at another event, Sotomayor noted that “When the court does upend precedent, in situations in which the public may view it as active in political arenas, there’s going to be some question about the court’s legitimacy."

Even taken in good faith, these arguments seem extreme: leaving the Court no other option than to follow most precedents and to allow most acts of the Executive and Congress to stand or else be accused of overstepping its power. But these arguments aren’t good faith ones—because of the indiscriminate way they’re made, the objections that the justices don’t answer when they make them, and the multiple venues in which they’re repeated. They don’t function to further actual debate about the Court’s role. They function to delegitimize the Court with labels that are picked up by a supportive legal academy and disseminated by an equally supportive establishment and popular media.

And the push toward delegitimation from within the Court doesn’t end with arguments. Two months ago, Justice Samuel Alito sat for an interview with The Wall Street Journal about the leak of the Dobbs decision a year before, and the ensuing threats to the five justices who signed off on the draft. Alito’s interview was unusual, since most information about the “inner workings” of the Court is leaked off-the-record and is therefore suspect, in part because we don’t know for a fact who’s leaking or why. But Alito had something he felt was important to say. Noting that “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody” and also that “I don’t feel physically unsafe, because we now have a lot of protection,” Alito laid out what he saw as the motive for the leak:

It was a part of an effort to prevent the Dobbs draft . . . from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside—as part of the campaign to try to intimidate the court. Those of us who were thought to be in the [5 justice] majority thought to have approved my draft opinion, were really targets of assassination. It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.

This is as reasoned as possible a way for a person to say that one of his life colleagues or their clerks or staff decided that the risk of harm to colleagues was outweighed by the need to leak. But it’s not a point of view whose implications have been much discussed—which may or may not be because even some conservatives would rather not look at its implications. Nor is it given much place in the established media, where one running theory is that a conservative justice leaked the draft to “lock in” five votes and stop any plausible wavering. (“Look,” said Justice Alito to this point, “this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”) Still, Alito’s reasoning was supported by his colleague Justice Clarence Thomas, who, again speaking publicly, noted that after the leak “that trust or that belief” that characterized the Court he joined in 1991 “is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder.”

All of this internal strife is especially disproportionate considering that the term that just ended was in no way radical. The Court’s ruling on affirmative action was long predicted and its ruling for an internet designer asking for a religious exemption from designing gay couples’ wedding websites was exactly that—a religious exemption, not a sweeping new right. When it came to questions of the authority of states versus the national government, Justices Kavanaugh and Roberts joined the three Democratic appointees to rule for the national government twice: again, not surprisingly since both justices have always been more deferential to precedent and comfortable with national authority. The one victory for states happened when the three avowedly originalist justices, Neil Gorsuch, Amy Coney Barrett, and Clarence Thomas, joined Justices Kagan and Sotomayor to uphold a California law, backed by Democrats, favoring states over multinational corporations.

To some degree, the justices have tried to emphasize this fact. Chief Justice Roberts has taken pains to state that he does “not mistake plainly heartfelt disagreement for disparagement.” Justice Kagan contextualized her comments in the Student Loan case by writing that “Justices throughout history have raised the alarm when the Court has overreached—when it has ‘exceed[ed] its proper, limited role in our Nation’s governance.’” The justices have also reached unanimous decisions in 48 percent of the cases heard this year versus 27 last year, though it’s not clear whether this was a concerted effort for consensus or dependent on facts of each case. Mainstream news reports as well as centrist Liberal and conservative commentators have picked up on these shifts, even as they criticized some rulings and most commentators continue to argue that the Court is off the rails.

But, for conservatives, a forbearing approach may not be the right one, because it effectively allows most of the ongoing attacks on the Court to continue unanswered—and because it doesn’t reflect reality. Ironically enough, President Biden is right when he says that this is “not a normal Court,” though not for the reason he thinks. This Court, for the first time in history, is enduring a full-court press against its authority from activists and institutions. Justices are being threatened; Congressional Democrats are unveiling sweeping bills and attack lines; the President of the United States is following suit; and the legal academy and media are adding heft. And, in the midst of this unprecedented situation, justices in the minority or their allies are using their bully pulpit to attack the Court’s authority and, in the case of the leak, put their colleagues in danger.

This is not, contra Justice Kagan, a situation with precedents in our history, and the members of the Court’s liberal wing are partly responsible. These justices all have stakes in preserving the status quo: they came up in national institutions and benefited from what others see as the intrusive policies of a corrupt government. Their recent writings, statements, and actions give a hint of the broad-brush lines they’ll push and the genuine legal differences they’ll obscure to preserve that status quo.

At the very least, Republicans should vociferously make the case that, despite the establishment’s arguments otherwise, conservative justices are not the real problems for the Court. The real problems are the Liberals and their allies—operating in tandem with the Court’s other attackers to push broad-brush narratives and disquieting leaks and lies.