The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For generations, the Supreme Court mostly hewed a progressive jurisprudence. Even if there were conservative blips here and there, appointees of Democratic and Republic presidents alike ruled in ways that were conducive to the political left. Litigants routinely judge-shopped cases (Amarillo has nothing on Montgomery), certain that the Supreme Court had their backs. During those golden times, judicial supremacy was considered a necessary condition of our polity.
But those times are gone. Prominent scholars openly speak out against judicial supremacy. And that academic theme carries over to the political realm. Indeed, Senator Wyden called on President Biden to "ignore" a district court's ruling. Not even Orval Faubus was so audacious. (My article on Cooper v. Aaron is more timely than ever.)
At least with the current administration, there is no realistic chance the President will "ignore" a ruling of a federal court. Indeed, Biden couldn't even stick to the script, and criticize the Supreme Court justices at the State of the Union. But sooner or later, the academic and political stars will align, and a President will openly flout a federal court judgment. Who will send in the 101st Airborne?
Until that time, there is a sustained attempt to undermine conservative judges. Superficially at least, these barbs are designed to criticize the legal justifications of their rulings. But there is a deeper purpose at play here. Perry Bacon Jr. said the quiet part out loud in his Washington Post column, titled There is only one way to rein in Republican judges: Shaming them.
So at least in the short term, there is only one real option to rein in America's overly conservative judiciary: shame.
Democratic politicians, left-leaning activist groups, newspaper editorial boards and other influential people and institutions need to start relentlessly blasting Republican-appointed judges. A sustained campaign of condemnation isn't going to push these judges to write liberal opinions, but it could chasten them toward more moderate ones.
Bacon names and shames federal judges who halted the student loan cancellation policy (Erickson, Grasz, Pittman, and Shepherd), judges in the CFPB funding case (Engelhardt, Willett, and Wilson), and judges in a recent Second Amendment case involving domestic violence restraining orders (Wilson, Ho, and Jones). We should thank Bacon for helping to assemble the next Supreme Court shortlist.
Of course, the locus of the shaming is the Supreme Court's "swing" vote, Justice Kavanaugh.
This kind of shaming has already been shown to work. . . Many of the opinions of Kavanaugh, who is now the court's swing justice, seem almost intentionally written to minimize public blowback.
I think Justice Kavanaugh is a different type of swing vote than were Justices Kennedy, O'Connor, and Powell. These jurists were truly moderate. They had liberal and conservative tendencies that often tugged them in different directions. By contrast, I think Kavanaugh is a profoundly conservative jurist, but he is often pulled to the left by public perception. His concurrences illustrate this internal struggle. Bacon agrees:
[Kavanaugh] seems to want to be respected by people across the political spectrum as a fair-minded judge. People on the left need to make clear he won't get that respect if all he does is issue opinions that align with what the Republican Party wants.
Newsflash: Kavanaugh will never gain respect from the left. Never, no matter how many concurrences he writes. The second sentence in Justice Kavanaugh's obituary will reference Dobbs and the third sentence will reference Christine Blasey Ford. His verdict is already written. It is impossible to appease these critics. Remember, virtually every piece written about Justice Thomas's 30th anniversary featured a discussion about Anita Hill.
Still, Bacon should be commended for his candor about Kavanaugh. Bacon also has the candor to admit he agrees with Trump!
In their thinking about the judiciary, Democrats should be more like Trump. While in office, Trump criticized a ruling he didn't like by casting the judge who wrote it as an "Obama judge." Roberts then issued a sanctimonious statement, "We do not have Obama judges or Trump judges, Bush judges or Clinton judges."
But at least right now, Trump is right. Roberts and his colleagues are acting like Republicans, not judges — and Democrats should say that loudly and often.
Even if Biden won't act, Bacon urges other prominent Democrats to carry the mantle:
And what if these attacks lead to threats and violence? So be it, Bacon writes:
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