Chris Hayes on the chorus of (whining) coming from the Supreme Court Justices.

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.

Chief Justice John G. Roberts Jr. has joined the list of other right-wing justices (Samuel A. Alito Jr., Amy Coney Barrett, Clarence Thomas) whining about public criticism of the court.

Let’s begin by recalling that no court was more heavily criticized than the Warren court. Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.

Appearing at a legal conference Friday, Roberts declared, “You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is.” He continued: “Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

He really doesn’t get it. The degree to which this court is utterly and completely tone-deaf to its role in the destruction of its own integrity remains a powerful reason for court expansion or term limits.

“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.

University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”

Let’s start with the obvious. It’s a fact, not an accusation, that the court is losing the public’s confidence. One need only look at a slew of polls to see that the court’s self-image as a nonpartisan institution does not match public perception. The question that remains is whether Roberts and the other five conservative justices will make it worse.

Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.

And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.

There is a price to be paid for such shenanigans.

If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”

While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

Chris Hayes on the chorus of (whining) coming from the Supreme Court Justices.

"The level of (defensiveness) here shows the criticisms of the court are really getting to
them. They hear it. They know that the public perception of them is bad. And that's a good
thing,” says Chris Hayes, on the reaction from Justices to their low public approval and
recent criticism.


Published: Oct 1, 2021


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