This morning, Chief Justice John Roberts should get up, look into the mirror and declare “I deserve good things. I am entitled to my share of happiness. I refuse to beat myself up. I am an attractive person. I am fun to be with.” That mantra from SNL’s “Daily Affirmation with Stuart Smalley” seems appropriate after the former Smalley comedian (and former U.S. Senator) Al Franken declared Roberts a “villain” and his Court “illegitimate” in the latest attack on the institution.
Now that Franken has turned to a podcast as a public platform, the comforting sweaters are gone and the dark Stuart Smalley has emerged. Call it “Daily Condemnations with Al Franken.”
Franken declared that “The court is a very divisive entity now, institution right now. And the Supreme Court, to me, is illegitimate.” He added that Roberts is a “villain” for heading such a divisive court.
Roberts needs to keep in mind that Franken may be “a caring nurturer, a member of several 12-step programs, but he is not a [sitting Senator].”
Franken resigned from the Senate in 2017 amid sexual harassment allegations.
He is also not much of a constitutionalist.
The Supreme Court has long been the subject of public ire over unpopular decisions. It was designed to resist the demands of the public or politics to rule according to the rule of law. In other words, it is meant to be “countermajoritarian” — resisting the pressures of the majority of the country to protect constitutional values and rights.
The first Chief Justice, John Jay, was so hated for that he once remarked that he could travel the “country at night by the light of [my] burning effigies.” One editorial declared: “John Jay, ah! The Arch traitor — seize him, drown him, flay him alive.” Crowds burned Jay in effigy, including a Kentucky mob that stuffed its effigy with gunpowder, guillotined it, then blew it up.
Later, Chief Justice John Marshall also was burned in effigy after writing the famous opinion in Marbury v. Madison. During the desegregation period, Chief Justice Earl Warren was burned in effigy and an “Impeach Earl Warren” campaign launched across the country.
Today it is the left that is calling for court stacking and denouncing the legitimacy of the Court.
Sen. Elizabeth Warren, D-Mass, has declared the Supreme Court illegitimate and has called to pack the Court for rendering opinions against “widely held public opinion.”
Rep. Alexandria Ocasio-Cortez, D-N.Y., even questioned the institution’s value: “How much does the current structure benefit us? And I don’t think it does.”
In 2020, Sen. Chuck Schumer (D-N.Y.) declared on the steps of the Supreme Court: “I want to tell you, [Justice] Gorsuch, I want to tell you, [Justice] Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
In addition to controversies over travel and financial benefits for justices, Franken objects to decisions made by the Court that have “divided” the country. It is as comically superficial as his former skit. The country is divided on abortion rights. Yet, Franken believes that the Court was wrong to decide against his side. The earlier division in favor of abortion was perfectly acceptable. It is now “partisan” because it no longer rules with Franken and the left on core issues. Of course, it was not partisan or illegitimate before because it was . . . well . . . right.
What is particularly humorous is that Roberts did not want to overturn Roe v. Wade. He voted alone to preserve the doctrine while adjusting the standard.
Nevertheless, Franken declared “I think the Chief Justice is actually much more culpable for this division than people think. I think Roberts is much more the villain in this than people give him credit for.”
Roberts is a curious target for the left given his repeated votes with the left of the Court in major cases. He is the ultimate institutionalist who has a well-known aversion to the Court intervening into politically sensitive areas. Yet, he is also a conscientious jurist who will vote to do what is constitutionally right rather than what is politically popular.
I often disagree with members of the Court, but I have never questioned their integrity or their institution. Indeed, the public shows the same respect for the Court. It is in our DNA. Despite a constant call to stack or even eliminate the Court from the left on MSNBC and CNN, the public remains committed to the institution despite only half having a favorable opinion of the Court. However, the popularity of the President is even lower and the popularity of Congress stands at just 26 percent.
Despite these divisions and polls, few of us would call the President or Congress “illegitimate.” By these measures, the Supreme Court is a runaway hit with just 48 percent declaring favorable opinions.
Of course, none of this is easy for a Chief Justice who, like everyone, wants to be loved. That is why the Chief needs to go to the ornamental mirror near his chambers every day and say “I’m going to do a terrific [hearing] today! And I’m gonna help people! Because I’m good enough, I’m smart enough, and, doggonit, people like me!”
This column ran on Fox.com