The U.S. Supreme Court has traditionally been one of the nation’s most respected institutions. Maintaining that stature is proving to be difficult.
Gallup released new results last week showing public attitudes toward the high court sliding to the lowest level since the pollster started asking the question in 2000. In theory, justices could be indifferent to Americans’ opinions, focusing entirely on constitutional disputes without regard for what may or may not enjoy public support.
But in practice, several justices appear to have taken note of the Supreme Court’s damaged reputation — and they seem eager to help reverse the trend.
Justice Stephen Breyer, for example, recently released a poorly timed book, which argues that the nation’s highest court shouldn’t be seen as a partisan political institution, all evidence to the contrary notwithstanding. Around the same time, Justice Amy Coney Barrett tried to defend the Supreme Court’s political impartiality — while speaking alongside Senate Minority Leader Mitch McConnell, who rushed her onto the bench during last fall’s presidential election as part of a brazenly political display.
A week later, Justice Clarence Thomas insisted that justices aren’t “politicians,” and it’s the court’s critics, and not the court’s rulings, that are “going to jeopardize any faith in the legal institutions.”
Yesterday, evidently, it was Justice Samuel Alito’s turn. NBC News reported:
Supreme Court Justice Samuel Alito said Thursday recent criticism of the court’s decisions in cases involving abortion and evictions unfairly accuses the conservative justices of acting in secret and in haste. Both decisions — allowing the new Texas abortion law to take effect but blocking the Biden administration’s moratorium on evictions — were issued in a short time frame, without oral argument or the usual schedule to file written briefs. They were, instead, the products of what has come to be known as the court’s “shadow docket.”
In remarks delivered at Notre Dame Law School, the conservative jurist said, “The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways [by issuing decisions in the dead of night]…. That portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
For those unfamiliar with the “shadow docket” phrase, The New York Times recently explained what the term refers to: “With increasing frequency, the court is taking up weighty matters in a rushed way, considering emergency petitions that often yield late-night decisions issued with minimal or no written opinions. Such orders have reshaped the legal landscape in recent years on high-profile matters.”
Part of the problem with Alito’s characterization is his indifference to the fact that some of the criticisms have come, not just from journalists and outside observers, but from other justices. As NBC News’ Pete Williams explained in his report:
The Supreme Court’s decision Sept. 1 to allow the Texas abortion law to take effect “illustrates just how far the court’s shadow-docket decisions may depart from the usual principles of appellate process,” Justice Elena Kagan wrote in a brief dissent. Kagan said that because the court acted hastily, without guidance from the appeals court and based on only cursory submissions, “the majority’s decision is emblematic of too much of this court’s shadow docket decision making — which every day becomes more unreasoned, inconsistent, and impossible to defend.”
What’s more, Alito seemed to misstate dimensions of the underlying controversy. Steve Vladeck, a law professor at the University of Texas at Austin, described the conservative justice’s complaints as “tendentious,” adding, The criticism is not that [the Supreme Court] should always grant or always deny emergency relief; it’s that the grants and denials are inconsistent, a problem exacerbated by both their lack of reasoning and the Court’s insistence that they are now precedential.”
Leah Litman, a law professor at the University of Michigan, also highlighted Alito’s eagerness to complain about media professionals, even quoting a piece from The Atlantic’s Adam Serwer, which the justice derided as “inflammatory.” It led Sen. Chris Murphy, a Connecticut Democrat, to respond, “Judges turning into political actors, giving speeches attacking journalists, is terrible for the court and terrible for democracy.”
It’s a difficult point to dismiss. It’s understandable that Alito would express concern about possible “damage” to the high court “as an independent institution,” but he’s a poor messenger for the message.
It was, after all, just last fall when Alito delivered surprisingly political remarks at a Federalist Society event, at which the conservative complained about public-safety restrictions during the pandemic, before directing his frustrations at marriage equality, reproductive rights, and five sitting U.S. senators, each of whom happen to be Democrats.
“This speech is like I woke up from a vampire dream,” University of Baltimore law professor and former federal prosecutor Kim Wehle wrote soon after. “Unscrupulously biased, political, and even angry. I can’t imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.”
If Alito is concerned about public perceptions of the Supreme Court, perhaps he should stop delivering speeches like these that adversely affect public perceptions of the Supreme Court.
