NRPLUS MEMBER ARTICLE O nce again, the Supreme Court’s reputation and honor are on the line, a crisis of credibility occasioned by the possibility that it may not give Democrats what they want.
In this case, the Court is personified by Chief Justice John Roberts, who will per protocol preside over President Donald Trump’s impeachment trial in the Senate. And so the intimidation campaign has begun: “Mr. Trump’s impeachment trial will be perilous for the reputation of Chief Justice John Roberts,” insists the New York Times.
Why should it be?
Oddly, but not unexpectedly, that is not made at all clear by Adam Liptak’s report in the Times, which is not exactly a report. Liptak warns the chief justice against making displays of partisanship without ever establishing that Roberts is in need of any such admonition from the august pages of the New York Times. His quotations from Roberts are the definition of anodyne. “We should celebrate our strong and independent judiciary, a key source of national unity and stability,” Roberts said in his annual report on the state of the judiciary. Liptak detects in this a coded message to Trump. Well. What else? “As the new year begins, and we turn to the tasks before us,” Roberts said, “we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.” So much for that.
Liptak quotes law professor Frank Bowman, who is the author of a book about impeachment, warning that even by the standard of presidential impeachments, “This one in particular is so poisonous.” About that very interesting claim, we might charitably note that the data set is very small.
So if Roberts gives us no especial reason to worry that he is about to turn into a slavering partisan operative on the model of Ruth Bader Ginsburg, then what, exactly, is the issue? The answer turns out to be O tempora! O mores! “The Supreme Court is still reeling from a series of ugly confirmation battles that placed two of Mr. Trump’s nominees on its bench,” Liptak writes. Indeed it is reeling, but the reputational blot there is on Senate Democrats who cynically embraced a rape hoax for their own narrow partisan ends. That’s a neat political strategy: Attack an institution and then demand that it do things your way because it is under attack.
One might be forgiven for suspecting that this is a cynical ploy.
The Democrats are great defenders of American institutions — provided those institutions serve their interests. In October 2016, the po-faced defenders of all that is good and precious were wearing themselves out demanding that Donald Trump and his supporters make a pledge to “accept the results” of the presidential election, a demand that was predicated on the assumption that Trump was going to lose. After making those demands, the Democrats have spent every single day refusing to accept the results of the 2016 election. They don’t give a fig about the credibility of our electoral processes — they care about winning. The Electoral College, the Senate, the Bill of Rights — when the Constitution itself gets in the way, they are ready and eager to gut it.
Yesterday, Democrats were willing to slander a Supreme Court nominee, and then to continue slandering him as a justice; today, they are very, very concerned about the delicate reputation of the Supreme Court. Yesterday, Democrats were working to advance a court-packing scheme that would seal and certify the politicization of the Court; today, the Court is so sacrosanct that we must move heaven and earth to fortify its perceived legitimacy. It is difficult to take seriously the notion that they are moved by tender concern for the reputation of an institution that they insist is staffed by political hacks and rapists.
The incoherence of those who would pressure the Court into acting as a factotum for the Democratic party infects those on the Court who are themselves attempting to act as factota of the Democratic party, Justice Elena Kagan prominent among them. Kagan has argued that the Court faces a “legitimacy deficit” and suggested that the cure for it is the explicit politicization of the Court’s votes in the search for an ideological middle. That’s a familiar kind of moderation and middle-ground seeking: the kind partisans discover and embrace when they think they are losing.
“The Court’s legitimacy depends on people not seeing the Court in the way that people see the rest of the governing structures of this country,” she said in a 2018 speech, and then went on to argue that so-called swing votes on the Court — those justices “who found the center” — are the key to its credibility. The center of what? The important intellectual dispute concerning the federal courts is not about whether they should be ideologically and politically moderate but about whether they should be ideological and political at all. You may not agree with the originalist or textualist view, but Justice Kagan here is contradicting herself. (Not for the first time: During her confirmation, she insisted that she could find no fundamental right to same-sex marriage in the Constitution; after confirmation, she lost no time in finding one.) Either the Court tries to apply the law as it actually is written, refusing to bend to political pressure — and bending to political pressure is precisely what “finding the center” means — or it is in fact precisely like “the rest of the governing structures of this country,” a partisan super-legislature. Of course, Democrats see the Court as a partisan super-legislature and have long treated it as such. They do not object to the politicization of the Court. They object to the Court’s not giving them what they want.
As it turns out, the Supreme Court’s reputation is always hanging by the barest tatter when Democrats think they may not get what they want. See Sheldon Whitehouse on labor disputes (“Senators Warn Union Case Risks Supreme Court’s Reputation”), Eric Holder on Brett Kavanaugh (“Eric Holder claims the Supreme Court’s credibility is at stake in Kavanaugh vote”), Emma Long on Neil Gorsuch (“The Legitimacy of the Supreme Court is at Stake”), Mark Joseph Stern on the Census (“The Supreme Court is Poised to Shred Its Credibility”), or any of the thousands of other headlines making the same argument: The Court’s choice is either destroying its own credibility or giving Democrats what they demand.
It isn’t that the Supreme Court does not deserve criticism. It certainly does, and Chief Justice Roberts bears some responsibility for that. But where it has erred is in knuckling under to precisely these sorts of demands rather than standing up for its independence and its institutional integrity — and the law, which still matters at least a little bit.
As for this kind of media assault, we should understand it for what it is: a lobbying and bullying campaign undertaken by people who believe not that the Supreme Court should be apolitical but that it should be robustly political — in the service of their agendas.