Last week, I had the honor of addressing the judges and staff of the United States Court of Appeals for the Tenth Circuit. Chief Justice John G. Roberts Jr. also spoke at the conference and I was in attendance when he made his comments defending the legitimacy of the Court. Those comments took on added significance when, the following day, Vice President Kamala Harris lashed out at the justices as “activists” and questioned the integrity of the Court. Now, Washington Post columnist Ruth Marcus has criticized Chief Justice Roberts as missing the point in his defense of the Court. I wanted to briefly respond on why the column replicates the historical and legal flaws of the Harris comments.
In her column, What Chief Justice Roberts Misses, Marcus writes that
“[Roberts] defense badly misses the point of why the court has fallen so far in public esteem…The chief justice’s convenient framing fails to fully capture or acknowledge what’s going on. Yes, a majority of the public is angry about the court’s decision in June to eliminate constitutional protection for the right to abortion. But the bottom-line result isn’t the only reason for the fury…The inflamed public reaction stems also from the fact that the law changed because the court’s membership changed.”
I understand Marcus’ concerns and she has covered the Court for many years in her distinguished career.
However, the objection to shifts in jurisprudence ignores prior periods where transformative rulings followed shifts in favor of the left on the Court. The Warren Court handed down a series of such decisions changing a wide array of areas, including some with sweeping political implications. That period continues to be celebrated, not condemned, on the left.
Likewise, the left has repeatedly called for packing the Court to muscle through changes on partisan lines. (To her credit, Marcus has opposed such court packing calls).
Moreover, liberal justices continue to vote to overturn precedent as they await a new majority. Former justice Justice Stephen Breyer routinely voted in dissent on death penalty cases despite decades of precedent supporting the right of states to impose capital punishment. If the Court’s majority shifted, he would have set aside decades of precedent.
While denouncing the “activist” conservative justices for overturning cases, Democratic senators and leaders have demanded that cases like Heller and Citizen’s United be overturned. Indeed, Hillary Clinton declared that she would only nominate justices who would overturn Citizen’s United.
During the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission. Democratic groups often decry the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.
Justice Sonia Sotomayor has assured liberals in public speeches that “mistakes” in such high-profile opinions can be “corrected” by the Court in later decisions. That sounds like a new majority would produce a new result.
Dean Erwin Chemerinsky celebrated that “Justice Sotomayor wrote a dissent, in which she said, ‘Trinity Lutheran v. Comer was wrong then, and it’s wrong now.’” While that appears a paraphrasing by Chemerinsky, Sotomayor makes clear in the recent Carson opinion that “this Court should not have started down this path” in Trinity Lutheran and clearly rejects its hold on the Court. Not surprisingly, Chemerinsky approves of that position.
Yet, Chemerinsky denounced the conservative justices as “partisan hacks.”
I do not view Justice Sotomayor as any more of a “hack” than I do her conservative colleagues. They are all interpreting the Constitution in what they believe is a faithful understanding of its language and values.
Marcus insists that Sotomayor “has aptly termed a ‘restless and newly constituted court’ could finally work its will, and so it did. That is the very definition of an ‘activist court,’ as Vice President Harris recently described it.” If so, Sotomayor herself would qualify as activist if she, as indicated, would vote to overturn these cases. That vote, however, would be celebrated on the left despite coming with a new majority.
Marcus insists that the Court’s “behavior is so difficult to defend. The fault, dear Justice, is not in the public but among your brethren.” It is not particularly difficult to defend. The Constitution invests the president with the power to nominate new justices because he (with the Vice President) are the only nationally elected officials in our government. The intent was to allow the Court to change with the country with the new leaders selected by the public. Both Democratic and Republican presidential candidates (as well as senatorial candidates) have run on pledges to change the Court majority to change precedent.
For the justices themselves, their “behavior” is not “difficult to defend” when they keep faith with their oath to “faithfully and impartially” interpret the law. It is bizarre to argue that they should vote for some interpretation of the Constitution that they believe is wrong and unfounded just to preserve precedent. If that view had prevailed in the past, Brown v. Board of Education would have upheld the racist precepts of “separate but equal” in Plessy v. Ferguson. When it comes to fundamental rights, justices should faithfully interpret the Constitution.
For these reasons, I believe that it is the critics of the Court who are “missing the point” over the shifts in jurisprudence that comes with changes on the Court. There are good faith reasons to object to the Dobbs decision. Indeed, Chief Justice Roberts said in his remarks that such criticisms are not only appropriate but important in our system. What is inappropriate is to attack the integrity of the justices simply because you disagree with their judicial interpretations.