The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Sunday, Erwin Chemerinsky called the Justices "partisan hacks." I was not particularly surprised that Chemerinsky expressed that sentiment. Academics on the left have long contemptuously viewed the Roberts Court as this right-wing juggernaut, even as it consistently disappoints conservatives. Still, the phrase "partisan hacks" elevated the rhetorical criticism to a new level. Later on Sunday, I was surprised to see Lyle Denniston's new column, titled What is the Supreme Court worried about? Lyle, regrettably, lines up with Erwin.
First, Lyle suggests that Justices Breyer, Barrett, and Thomas coordinated their remarks this week to rebut any sense the Court has become politicized:
It is becoming increasingly clear that, inside the Supreme Court, some of the Justices are growing worried about the institution's public reputation. But what may be most worrisome to them is how that might translate into structural change, imposed on the Court from the outside.
In recent days, three of the Court's nine Justices have spoken out publicly — first, to defend the tribunal's need for independence and, second, to blame the threat to that independence on flawed portrayal in the media of the Court as politically-driven.
The three were the longest-serving Justice, Clarence Thomas, the newest, Amy Coney Barrett, and the most politically savvy, Stephen G. Breyer. While it is arguable that each spoke out to express their own concerns, it is more likely that there has been at least some internal coordination, to get out a message of common worry.
Does Lyle have any inside information that the Justices are holding some kind of PR sessions to discuss damage control? I doubt it. These are the sorts of messages that the Justices have been talking about years. And Justice Barrett, Thomas, and Breyer were responding to questions from the public. It is fortuitous that three Justices all gave public remarks in a short timeframe. But the events were planned long ago. I would chalk that concentration up to the recent relaxation of COVID-protocols as the Court begins a new session in-person.
But the kicker in Lyle's piece comes at the very end. He says what Erwin said, without saying it directly.
In short, some more rigorous self-examination may be in order among the Justices of their own role in adding to the reputation of a Court that may have grown too political for its own good.
Not you too, Lyle!
Here is my surmise. Many people on the left recognize that the Court may overrule Roe this term. And every effort will be made to preemptively delegitimize the decision: Roe can only be rejected if you are a partisan hack. There is no discussion about the Constitution, or whether the 14th Amendment supports a right to abortion, or whether Casey's stare decision framework has proved viable. It can only be politics all the way down. But it is politics that has sustained Roe, and not the law.
This future may be especially bitter for Lyle, who had a front-row seat for the Supreme Court's jurisprudential revolution. Without question, there was a Court that was far too political for its own good. It was chaired by Earl Warren, and not John Roberts. To the extent that today's Supreme Court distances itself from the freewheeling jurisprudence from that bygone era, it will become less, and not more political. The penumbras must be eclipsed.