In three weeks, the U.S. Supreme Court will convene for its October session. New Justice Ketanji Brown Jackson will be formally sworn in on September 30, ready for the onslaught of extremism her corrupt colleagues promise. On Friday, speaking publicly for the first time since the Court blew up American society by reversing federal abortion protections last June, Chief Justice John Robertsinsisted the court is perfectly legitimate, everything’s absolutely fine, and please stop being mean to them.
Roberts told the attendees of the 10th Circuit Bench and Bar Conference in Colorado Springs, Colorado, mostly judges, that it was “gut-wrenching” to have to come to work every day through barricades because the decisions the Court had made were so enraging to the general public, the people showed up to tell them so. There’s no reason to assume that because one of the justices is married to an insurrectionist, two are there because Mitch McConnell stole their seats for Donald Trump, and a third allegedly has a history of sexual assault—and they lied to the Senate to get their seats—that people should question the Court’s legitimacy.
“You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is,” said Roberts. “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
Of course, criticism of the Court is not simply about disagreement with decisions. It’s about the fact that it’s obvious that the Court has been hijacked by the far right, packed by Trump, and is operating on raw power of the majority to upend decades of progress.
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Roberts went on to say that the Court’s job is just to decide what the law is on the basis of interpreting the Constitution. “That role doesn’t change simply because people disagree with this opinion or that opinion or with a particular mode of jurisprudence,” he said. That’s a good indication that we can expect more of the same from this session of the Court, because nothing is going to change and he’s not going to be challenging his extremist colleagues. “I think just moving forward from things that were unfortunate is the best way to respond,” he said.
That’s just not going to work. Because the Court has been radicalized, and the American public is condemning it. In a year’s time, public approval for the Court reversed, from 60% approval in July 2021 to 61% disapproval in the weeks following the Dobbs v. Jackson Women’s Health decision overturning federal abortion rights. Just 38% of respondents in that poll approved of the Court, and just 36% approved of the Dobbs decision.
In fresh polling from progressive firm Data for Progress, support for abortion rights is high—61%—and a majority of 54% of voters believe that the Court “needs more limitations on its authority so it doesn’t overstep its power.”
At The American Prospect, Ryan Cooper notes that the Constitution gave Congress the power to enforce those limitations, and, in fact, did so recently.
The “Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress made such an exception in the newly passed Inflation Reduction Act, when lawmakers put the drug price control provisions out of the Court’s reach, writing, “There shall be no administrative or judicial review” of those measures.
Cooper points out that if the Democrats can keep the House and increase their Senate majority to stop a filibuster, Congress could protect federal abortion rights that way, taking it out of the Court’s jurisdiction.
That would be great for abortion rights. But there are also voting rights. There are larger civil rights at issue. There’s environmental protection. There’s the separation of church and state. There’s an entire century of progress in the U.S. at stake, so Congress can’t just stop at limiting the Court’s jurisdiction on the issue of abortion.
The legitimacy of the Court is also at stake right now, and in order to save it, Congress needs to fix it. That means larger reforms than limiting its jurisdiction—it means changing its fundamental make-up to recapture it from the extremists, and that ultimately means expanding it.