This comes despite — or maybe in part because of — Justices Clarence Thomas, Stephen G. Breyer and Amy Coney Barrett’s public protestations that they and their colleagues are not partisan extensions of the presidents who appointed them. The more they whine that they are not “hacks,” as Barrett put it, the more obvious it becomes that they are not only partisan but also entirely un-self-aware. One would have to be deliberately dense not to recognize that right-wing justices’ “judicial philosophy” inevitably and intentionally leads to right-wing policy outcomes, exactly as the groups who pushed for their nomination and confirmation intended.
The perception of political bias increases once justices emerge from behind the bench to enter into nonlegal discussions or speak in partisan settings (looking at you, Justice Barrett). Once upon a time, justices rarely spoke in public, confining their views to written opinions. It’s a practice worth restoring, lest the public perceive justices as running a self-serving campaign to justify their right to a lifetime appointment with which to carry out their partisan mandates.
The nub of the problem is not that (or not only that) voters are angry that the court allowed a diabolical and invasive Texas law to go into effect. The problem, rather, is that once the facade of impartiality and nonpartisanship is shattered, it is nearly impossible to get back.
What is the public to think of a justice who screamed at members of the Senate Judiciary Committee: “This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups”? The inevitable takeaway is that Justice Brett M. Kavanaugh — and his votes on the court bear this out — is an embittered partisan, not someone coming to cases without interest in the outcome.
What is the public to think when precedent falls by the wayside and the only basis for the court’s reversals is a change in the composition of the bench? “The court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification,” Justice Sonia Sotomayor decried in her dissent in a case involving life sentences without parole for juveniles.
In 2018′s Janus v. AFSCME, the court reversed 41 years of precedent that held that public-sector unions could require dues from nonmembers for the costs of collective bargaining. “Rarely if ever has the Court overruled a decision — let alone one of this import — with so little regard for the usual principles of stare decisis,” Justice Elena Kagan wrote in dissent.
Again, in 2020′s Ramos v. Louisiana, the court dumped a 1972 precedent regarding unanimity in state criminal court jury convictions. As court observers noted, the only thing that changed since the court’s last decision on the issue was Kavanaugh replacing Justice Anthony M. Kennedy. Kavanaugh’s opinion centered on, yes, the importance of being willing to overturn precedent.
Abuse of the shadow docket has become common, too, most recently in the Texas abortion case. It has allowed the court to make significant and hugely divisive rulings without fully explaining its reasons (and in the past few years to repeatedly grant relief to the Trump administration). As law professor Steve Vladeck wrote in 2020:
Three and a half years into the Trump administration, the solicitor general has sought emergency relief — to stay a lower-court ruling or lift a lower-court stay — on 36 separate occasions. … That’s in contrast to the previous 16 years — under Presidents George W. Bush and Barack Obama — when the solicitor general sought such relief eight times, or once every other year.The uptick has not just produced more rulings from the court; it’s also produced more division. In the 22 cases in which the court has granted at least partial relief to the government, at least two justices have publicly noted dissents 17 times, and nine of the orders have publicly been 5-4. (One of the quirks of the shadow docket is that we don’t usually know the actual vote count — unless four justices publicly note dissents.) In contrast, no justice publicly noted a dissent on any of the four occasions that the court granted emergency relief to the government between 2001 and 2017.
If the justices are no longer bound by precedent, rewrite statutes at will and don’t even bother to present their full legal reasoning in many cases, the public should draw the conclusion that they are not acting as judges but as partisan surrogates.
Justices who want to regain credibility or at least conserve what little they retain should avoid speaking in public and ruling through the shadow docket save for rare exceptions; their adherence to long-standing precedent should be the rule in virtually every case.
Right now, the reverse is true. The court is losing the respect of the public, and justices have only themselves to blame.