If Justices Want to Protect the Supreme Court’s Legitimacy, They Should Stop Trashing Their Colleagues

S upreme Court justices often warn that the Court’s authority depends on public acceptance of its decisions. They are right, but they should apply those warnings to themselves as well.

During an appearance in Tulsa on September 16, Justice Sonia Sotomayor observed that many Americans do not understand the First Amendment. But then she added: “Some of my colleagues don’t either, by the way. And I’m not joking about that.”

This is not the first time Sotomayor has publicly criticized her colleagues. She recently said at the University of Kansas that Justice Brett Kavanaugh, whose parents were “professionals,” “probably doesn’t really know any person who works by the hour.” Sotomayor later apologized, calling her comment inappropriate and hurtful. But the episode illustrates why justices should avoid personalized criticism in the first place.

Sotomayor is hardly alone in her caustic remarks. During a speech at Yale Law School, Justice Ketanji Brown Jackson said the Court’s emergency rulings have a “corrosive effect” on the institution. Notably, she called the rulings “scratch-paper musings” that “seem oblivious and thus ring hollow.”

At Northwestern University in 2022, Justice Elena Kagan suggested that the Court’s originalist majority had changed its interpretive rules when necessary to reach its desired outcomes.

For as much as the justices tell us the Court’s legitimacy is brittle, they sure act as though it’s iron. The Court can ill afford this.

A national Marquette Law School poll of 1,023 adults conducted in September found that 43 percent of adults approve of the Court’s performance and 57 percent disapprove. The partisan division was enormous: 71 percent of Republicans approve, compared to 36 percent of independents and 19 percent of Democrats. More damaging still, 57 percent of respondents said the justices are motivated mainly by politics, while only 42 percent said they are motivated mainly by the law. An earlier Reuters/Ipsos poll found that only 20 percent of Americans consider the Court politically neutral, while 58 percent disagreed.

That is a legitimacy problem. The danger is not simply that people dislike particular decisions. It is that they increasingly doubt whether the decisions are based in the law at all. These surveys do not establish that the justices’ public comments caused the Court’s declining standing, but they do show that such remarks reach a public already inclined to view judicial decisions as political.

When one justice tells an audience that her colleagues do not understand the First Amendment, or that they alter their methods to obtain preferred outcomes, they encourage the public to question the competence or good faith of their fellow justices or the Court as a whole.

Such comments also provide ammunition to every politician who wants to dismiss an unfavorable ruling as partisan. If Supreme Court justices say their colleagues are results-oriented, ignorant of constitutional principles, or insufficiently attentive to the law, why should the public reject the same accusation when it comes from a president, senator, or media outlet?

None of this means that the justices should pretend to agree. Majority opinions and dissents exist precisely so judges can explain why competing legal arguments are right or wrong. Those writings identify the issue, present the relevant authorities, and give the criticized justice an opportunity to answer.

But the increasingly popular extrajudicial roadshow is different. A speech, interview, or book-tour appearance rarely provides the full legal context of a judicial opinion. Its sharpest line travels farther than its doctrinal explanation. The criticisms can become personal or political.

The Court should adopt a simple norm for public appearances: Criticize doctrines, decisions, and interpretive methods, but do not impugn a colleague’s intelligence, motives, integrity, or personal experience.

When I was a child, my father coached our summer soccer team. He didn’t know much about soccer, but he did know about leadership. “We have only one rule on this team,” he would tell us. “Rule number one: You never say anything bad about a teammate.” He did not mean that teammates could never disagree. He meant that disparagement weakens the entire team.

The justices need to learn rule No. 1.