Chief Justice John G. Roberts Jr. says it’s wrong for people to deem the court illegitimate because its decisions are unpopular. He’s right — but his defense badly misses the point of why the court has fallen so far in public esteem.
The chief justice’s convenient framing fails to fully capture or acknowledge what’s going on. Yes, a majority of the public is angry about the court’s decision in June to eliminate constitutional protection for the right to abortion. But the bottom-line result isn’t the only reason for the fury.
The inflamed public reaction stems also from the fact that the law changed because the court’s membership changed. The ruling in Dobbs v. Jackson Women’s Health Organization was the culmination of a political and politicized process to bolster the conservative majority by any means necessary. And this stacked court has — time after time, but most flagrantly in overruling Roe v. Wade — abandoned normal rules of restraint, twisted or ignored doctrine, and substituted raw power to achieve its desired result.
What liberal Justice Sonia Sotomayor has aptly termed a “restless and newly constituted court” could finally work its will, and so it did. That is the very definition of an “activist court,” as Vice President Harris recently described it.
And this is how the institution undermines its own legitimacy. If the court behaves like just another political body, it loses the only power it has, of achieving public acceptance of its rulings.
The chief justice understands this better than anyone. In 2006, at the end of his first term on the court, he stressed the “high priority to keep any kind of partisan divide out of the judiciary” and noted that his colleagues “don’t want the court to seem to be lurching around because of changes in personnel.”
Roberts tried valiantly to prevent this. He warned in Dobbs of the “serious jolt to the legal system,” precisely because he knew the institution was putting itself at risk by moving so precipitously and unnecessarily.
Now, the court is reaping what Roberts cautioned it against sowing. The court’s approval rating has tanked. And Roberts finds himself in the awkward position of defending against the very criticism he knew was coming.
As with any smart advocate, his solution is to recast the debate in more attractive and defensible terms — the danger of the court being swayed by popular opinion or cowed by public backlash.
“If the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle, and you don’t want public opinion to be the guide about what the appropriate decision is,” Roberts said Friday. “Lately the criticism is phrased in terms of ‘Because of these opinions, it calls into question the legitimacy of the court.’ I think it’s a mistake to view those criticisms in that way.”
Of course the court shouldn’t bow to public pressure. It serves a critical role as a counter-majoritarian institution. Sometimes legislation that is overwhelmingly popular violates constitutional principles. Sometimes speech that is reviled needs constitutional protection against the majority urge to suppress it.
But the court’s relationship with public opinion is more nuanced than the chief justice’s remarks suggest. The court also strays into dangerous territory when it veers too far beyond what the public will tolerate and when it acts in ways so markedly different from judicial norms.
The chief justice isn’t the only one who has grappled publicly with questions about public confidence in the court. Justice Elena Kagan was asked about the issue less than a month after the Dobbs decision, and she offered a different diagnosis.
“The way the court retains its legitimacy and fosters public confidence is by acting like a court,” she said. “By doing the kind of things that do not seem to people political or partisan. By not behaving as though we are just people with individual political or policy or social preferences that we are making everybody live with, but instead we are acting like a court, doing something that is recognizably law-like. That is where we gain our legitimacy.”
Specifically, Kagan said, acting like a court means respecting precedent, applying judicial methodologies consistently and irrespective of outcome, and not lunging to make decisions more far-reaching than the pending case requires. “People are rightly suspicious if one justice leaves the court or dies and another justice takes his or her place and all of a sudden the law changes on you,” she said. “That doesn’t seem like law.”
Kagan stopped short of tying a flashy bow on her remarks, taking pains to insist that she was “not talking about any particular decision or even any set of particular decisions.” But it was hard not to miss her grim meaning — especially if you had read any of her dissents in the term just concluded.
And this is where Roberts’s defense of the institution falls short — perhaps of necessity, because its behavior is so difficult to defend. The fault, dear Justice, is not in the public but among your brethren.