Your Rights: Roberts’ Rules Of Order

by Michael Liss

It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. …[W]e do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country. —Chief Justice John Roberts, Opinion of the Court, Biden v. Nebraska

Let us not be misled.

Here we go again.  Another year, another round of controversial Supreme Court rulings, another set of difficult questions about the behavior of Supreme Court Justices.

This is not a happy group, and the unhappiness is not merely ideological. The personalities are different. In each of the four instances of changing seats since 2016, the Court lost a bit of its temperamental cohesiveness. Beyond the famous friendship between Justices Scalia and Ginsburg, Justice Kennedy was conciliatory and mindful of the Court’s traditions; Justice Breyer was courtly and insisted he was among friends. Now we have Justice Kagan squaring off against the Chief; Justices Thomas and Jackson engaging in what looks to be a very personal argument; and Justice Alito veering from searching for the Dobbs leaker, to accusing his critics of endangering his life, to airing his grievances from the safe space of the WSJ Opinion pages. Let me admit to being surprised that Justice Kavanaugh not only vouches for collegiality, but is also the Justice most in the majority.

That the liberal wing of the Court is discontented is understandable—with a couple of exceptions, it’s getting crushed on the field. Linda Greenhouse, in an article for The New York Times, points out that long-held conservative wishes that had been dammed up behind the pre-Trump-largely-centrist Court have been realized. Abortion, guns, affirmative action, the open embrace of religion, and a heavy SCOTUS hand on those regulatory actions of which conservatives don’t approve—all these trophy wins have been banked, with more to come. Greenhouse ends on what anyone who believes in checks and balances should find chilling: “The Supreme Court now is this country’s ultimate political prize.” Read more »

Second Monday In October: The Legitimacy Crisis

by Michael Liss

Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court. —Chief Justice John Roberts

Justices of the Supreme Court, October 3, 1931. From The New York Public Library.

Ah, if only it were that simple. It’s not, so fasten your seatbelt because the men and women in black are back.  

First, the good news. The Court welcomed its newest member in Justice Ketanji Brown Jackson, and the rookie can play. She acquitted herself quite well in her first oral argument in Merrill v. Milligan. Justice Jackson joins Justices Kagan and Sotomayor in the “Lost Battalion” of Liberals, but there is every reason to think she can make her mark.

Now to the bad: Regrettably, it must be noted that SCOTUS is back in session, and no good can come from this. Having wreaked havoc across a broad spectrum last term, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are expected to continue to gorge themselves. To paraphrase Sir Edward Grey on the eve of World War I, “The lamps are going out on our rights. We shall not see them again.” Read more »