As a rule, judges are loath to criticize the U.S. Supreme Court. Countless jurists have disagreed with the justices’ rulings over the years, but they’ve done so privately and without speaking to the press.
But lately, those norms have started to evolve.
While emergency rulings from the high court used to be rare, Republican-appointed justices have started issuing them with far greater frequency lately, routinely overturning lower court rulings that involve the Trump administration with little or no explanation. Not surprisingly, it’s led to confusion, frustration and resentment.
In fact, it reached the point over the summer that NBC News reported on criticisms from a dozen federal judges — appointed by Democratic and Republican presidents, including by Trump, and serving around the country — against the Supreme Court’s recent habits. The anonymous criticisms were an immediate embarrassment to Chief Justice John Roberts and his colleagues — and they were also correct on the merits.
A month later, The New York Times advanced the story: The newspaper spoke to more than three dozen federal judges, who collectively agreed that the justices’ “flurry of brief, opaque emergency orders in cases related to the Trump administration have left them confused about how to proceed.” Those same judges expressed concern that the Supreme Court was “hurting the judiciary’s image with the public.”
Key congressional Republicans saw the reporting and started asking questions. Unfortunately, they were the wrong questions. The Times reported:
The Republican chairmen of the Senate and House Judiciary Committees appealed to Chief Justice John G. Roberts Jr. on Wednesday to look into whether federal judges who responded to a New York Times questionnaire with criticism of the Supreme Court had violated their ethics obligations.
In their letter, Republican Sen. Chuck Grassley of Iowa and Republican Rep. Jim Jordan of Ohio wrote, “We are deeply concerned that these public attacks on the court from sitting federal judges damage the public’s faith and confidence in our judicial system. When judges call into question the legitimacy of their own branch of government, they erode faith in the institution itself.”
The congressmen are badly the missing the point. What damages the public’s faith and confidence in our judicial system is Republican-appointed Supreme Court justices, to a degree without modern precedent, scrambling, without explanation, to overturn district court rulings that the White House doesn’t like. What erodes faith in the judiciary as an institution is the justices’ use of the so-called shadow docket to benefit Trump, not lower court judges expressing concern about the justices’ use of the so-called shadow docket to benefit Trump. NBC News’ report in September and the Times’ article in October were examples of judges pleading for more responsible behavior on the part of the justices. If Grassley and Jordan are concerned, that’s great, but their focus should be on the high court’s controversial conduct, not lower-court judges’ complaints about the justices’ controversial conduct.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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