Justice Elena Kagan, appearing with her colleague Justice Sonia Sotomayor, at Princeton University last week had timely observations as the Supreme Court added a self-revealed Republican partisan to its ranks. “All of us need to be aware of that — every single one of us — and to realize how precious the court’s legitimacy is,” she added. “It’s an incredibly important thing for the court to guard is this reputation of being impartial, being neutral and not being simply an extension of a terribly polarizing process.” She explained that without centrist justices such as Sandra Day O’Connor and Anthony M. Kennedy, the court and the country are now starkly divided into two camps.
In expressing trepidation about the loss of a centrist, Kagan implicitly conceded that on this court, everyone’s mind is already made up in advance on the cases that count the most and on which the country is bitterly divided. That is a horrible place for the court to be, for it defies the very notion of open-minded adjudication without bias.
As a preliminary matter, Justice Brett M. Kavanaugh needs to take responsibility for his outlandish, partisan remarks and his implicit threat to the left (“what goes around comes around”). He did not apologize let alone retract those remarks in his Wall Street Journal column. It behooves him to issue a statement as Justice Clarence Thomas did — live, no less — from his home after his confirmation to urge a period of “healing.’ Kavanaugh should pledge to do what is necessary, including recuse himself to remove any hint of bias or conflict, to assure all litigants he will treat them fairly and retain an open mind. The more overtly partisan and ideological he is on the court, the steeper will be the climb to reclaim his reputation and credibility. If, however he acts, speaks and writes like a puppet of the Federalist Society, the court’s legitimacy will be very much up in the air.
In addition to Kavanaugh taking ownership of his egregious rhetoric, the high court can gain credibility by instituting ethics guidelines that it currently lacks and carefully policing justices’ own recusals. What else could the justices do to reassure Americans and bolster the rule of law? Three suggestions come to mind.
First, the tone of many opinions in recent years has become increasingly personal, nasty and uncivil. It might be amusing to read a biting dissent from the late Antonin Scalia, but rash language suggests colleagues are not acting in good faith. It sets a poor example for the country when the opinions, concurrences and dissents are chock-full of red-hot invective. If their interpersonal dealings are as collegial as they say, their writing should reflect that as well.
Second, Chief Justice John G. Roberts Jr., who has worried about the legitimacy of the court (e.g., in overturning the Affordable Care Act), needs to strain for consensus and avoid being pigeonholed by ideology — in contrast to his eight colleagues who are easily sorted into liberal and conservative camps. If ever there were a time for him to become a less predictable, less doctrinaire justice, the time is now.
This doesn’t mean Roberts should change his views on major jurisprudential issues. It means he should give greater weight to decades-old precedent, eschew sweeping decisions and resist broad deference to the executive branch. The court must live up to his duty to provide a firm check on executive-branch excesses. The art of compromise and consensus in reaching decisions that do not invariably come to 5-4 opinions needs to be practiced in the high court, just as it is in the elected branches of government. That is not a violation of their judicial oaths; it is a profound realization that we face threats to our basic institutions from unbridgeable ideological and cultural divisions. The court, in particular, must strive on any opinion involving President Trump’s legal exposure to act with one voice as it did during Watergate.
Third, rather than speak publicly as gladiators representing one of the two warring camps (“Justice Thomas speaks on originalism!”), justices must be unbiased national teachers, defending and explaining the independence of the courts, articulating basic constitutional principles such as standing that restrain the court’s powers and identifying the built-in tensions in our system of government (e.g., checks and balances, federalism, equality vs. freedom). By putting the court’s work in historical context, justices can dampen the perception that the court is making policy choices rather than applying legal analysis and navigating through conflicts inherent in our democracy.
The justices should refuse to attend political or legal gatherings “from their own side” — or if they do, appear in tandem with someone from the opposite ideological camp. (Kavanaugh dare not troop to annual meeting of the Federalist Society, which effectively put him on the Supreme Court; he must diminish the impression he is beholden to a political camp.) Let ideological organizations and pundits for now debate and advocate judicial methodology (which inevitably is identified with one ideological camp or the other); the justices should retain for themselves the role of legal historians, institutional defenders and cheerleaders for civics education. Exercise some restraint, in other words, in their public pronouncements and writings beyond opinions.
The court must see itself not simply as an answer box spitting out decisions (no on abortion, yes on health care, etc.). It cannot be a pro-Republican outfit. It must now more than ever hold itself out as an institution that preserves respect for the rule of law and can rise above partisanship. The alternative would be loss of its own influence and deeper tears in the fabric of our democracy.