Sympathy for the Justices

John Roberts says he's not the bad guy. By Luke Pickrell

The Supreme Court recently released Chief Justice John Roberts's Year End Report on the Federal Judiciary. The report comes just a few weeks after the Senate Judiciary Committee blasted the justices for selling their services to the highest bidder, writing, “Justices appointed by presidents of both parties have engaged in conduct that ranges from questionable to clearly violative of federal ethics laws, and several justices have done so consistently without suffering negative consequences.”

Roberts doesn’t mention the committee’s findings in his report. Why should he? A justice has never been impeached. The report is all bark and no bite. Instead, Roberts focuses on the mean things people supposedly do to him and his compatriots. “Judicial review makes tensions between the branches unavoidable. Judicial officers resolve crucial matters involving life, liberty, and property,” acknowledges Roberts. But things have gotten out of hand. “Violence, intimidation, disinformation, and threats to defy lawfully entered judgments” have increased, threatening the Court’s independence and, by extension, America’s democracy.

A few points.

First, the Supreme Court is anything but politically independent. The Senate Judiciary Committee only confirmed what everyone has known since ProPublica’s exposés in early 2023. Justice Clarence Thomas (confirmed in 1991 by a Senate majority representing less than 50 percent of the population) has taken bribes from wealthy conservatives “for almost his entire tenure as a justice.” The late Justice Antonin Scalia accepted free hunting trips from wealthy Republican donors with business before the Court. Justice Samuel Alito and his wife displayed flags associated with the January 6 insurrection outside their home. Like Roberts (Trump), Alito (Bush) was nominated by a president who lost the popular vote.

The justices are unaccountable — that is, unaccountable to any binding code of ethics or democratic oversight. The result, explains Louis Michael Seidman in From Parchment to Dust: The Case for Constitutional Skepticism, is “what one would expect — a freedom to indulge personal quirks, obsessions, foibles, and ideological projects without having to account to others for one’s actions.” Justice Brett Kavanaugh, for example, was accused of sexual assault, and the Trump administration shielded him from a full investigation. Kavanaugh was later confirmed by fifty senators representing a minority of the population.

And it’s not only the Roberts’ Court that’s biased. “The truth is that most of the justices have gained their seats because of inside connections, political deals, and ideological commitments,” writes Seidman, and “Their performance on the bench is consistent with what one would expect from individuals selected on this basis.” Scalia said it himself while defending his failure to recuse himself from a case in 2004 in which Dick Cheney was a named party after Scalia had gone duck hunting with the vice president: “Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials — and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive.”

Second, Americans need protection from the Court, not vice versa. Over its history, the Court has rendered many terrible decisions, including enforcing the Alien and Sedition Acts, siding with slave owners in the run-up to the Civil War, shredding the 14th Amendment during Reconstruction, validating racist “states’ rights” and “separate but equal” arguments, supporting eugenics programs, fighting against a federal income tax, and agreeing with Japanese internment. Even the Warren Court, the darling of liberal defenders of the Constitution, wasn’t free from blemishes. More recently, the Court gave George W. Bush the presidency in 2000, read the Second Amendment as guaranteeing the right of an individual to own a firearm for self-defense, greenlit unlimited campaign spending, gave the president “presumptive immunity from prosecution for all his official acts,” overturned Roe v. Wade and the Chevron Doctrine, and set the police on homeless people.

Third, the report clarifies that, like all constitutional worshippers, Roberts doesn’t like democracy. In arguing for the Court’s supposed independence, Roberts favorably cites Alexander Hamilton, who recognized that “an independent judiciary must uphold the Constitution against the shifting tides of public opinion, as ‘no man can be sure that he may not tomorrow be the victim of a spirit of injustice, by which he may be a gainer today.’” In other words, watch out for that elusive boogeyman, the tyranny of the majority. The public tide might shift such that a majority starts demanding universal healthcare, a healthy climate, or the abolition of the Electoral College. Thank goodness the Supreme Court is there to hold back the tide of such wretchedness. In reality, America suffers not from the tyranny of the majority but from the tyranny of a minority. If only we had a political system through which the majority ruled. If only we had a democracy.

The Supreme Court is a total mess, and people are starting to notice. According to a Pew Research Center survey, fewer than half of Americans express a favorable opinion of the Court, while about half have an unfavorable view. The Court’s favorable rating is 23 percentage points lower than in 2020.

Poor John Roberts. Poor justices. Why is everyone so mean? Still, there’s nothing a three-month paid vacation and a free hunting trip can’t cure.