A Reminder

A new #SCOTUS term begins today without any blockbuster cases (for now). As @ngertner and I write in the @nytimes, that shifts attention to the Court itself—and whether the justices are at all troubled by the continuing erosion of the Court’s credibility:https://t.co/JHcwBQC78K

— Steve Vladeck (@steve_vladeck) October 7, 2024

All federal courts (with exceptions) are Art. III institutions. With the exception of the Supreme Court in minor ways, they are all the creation of Congress. They are not “co-equal” because their authority rests on acceptance of their authority, and nothing else. They do not pass laws (Congress), nor enforce them (Administration). They, in essence, arbitrate. They do not directly answer to Congress or the Administration, but neither do they stand equal to it. They simply don’t have that kind of power. The Roberts Court has been so foolish as to not understand that. At. All.

It isn’t hard to imagine a future President Trump, returned to the Oval Office perhaps with the court’s help, thumbing his nose at the justices should they have the temerity to rule against his policies, as they often did during his first term. (For example, if the Supreme Court rules that some future executive order is unconstitutional, Mr. Trump could nevertheless illegally order law enforcement or administrative agencies to implement it.) Defying the Supreme Court wasn’t politically possible at that time, nor has it been an option for President Biden even as the court has blocked, or refused to unblock, a dizzying array of his domestic policy programs.

Tell me that under Trump v US that scenario is impossible. No President has ever been impeached and removed from office. Considering how supine the GOP is now in the face of Trump’s outrageous conduct, do you really expect the Senate would finally buck history, even in that scenario?

If this scenario sounds far-fetched, consider a real case. In January, a 5-4 majority (with Chief Justice Roberts and Justice Barrett joining the three Democratic appointees in the majority) issued an unsigned, unexplained order clearing the way for the Biden administration to continue removing razor wire that Gov. Greg Abbott of Texas had ordered to be placed along the U.S.-Mexico border. The governor had done so ostensibly to deter unauthorized border crossings, but the razor wire also hindered the ability of the Border Patrol to do its job. Within hours of the ruling, Representative Chip Roy, Republican of Texas, was on Fox News calling on Mr. Abbott to defy the Supreme Court. 

Mr. Roy’s comments received little national attention because they were entirely unnecessary. The Supreme Court’s ruling was so narrow — allowing the federal government to temporarily remove existing razor wire — that there wasn’t much for Mr. Abbott to defy. But the speed with which a leading House Republican took to the airwaves to encourage Republican political leaders to ignore a Supreme Court ruling ought to have sounded alarm bells — especially inside the Supreme Court. 

This point appears lost on the justices. For as much as some on the court and its public defenders may see calls for reform from people like us as a threat to the institution, continuing to act in a way that erodes whatever credibility the court has left is an even greater threat — not just to the court, but to the Republic. 

A court without legitimacy is a court unable to curb abuses of political power that its rulings may well have enabled. It is a court that will be powerless when the next Chip Roy calls for disobedience because it will have long since alienated those who would otherwise have defended it. It would become a court powerless to push back against the tyrannies of the majority that led the founders to create an independent judiciary in the first place.

Legitimacy is all the power a court really has. When they trade that away in the imagined grounds that, as the “supreme court,” they stand equal to Congress (which sets their numbers, their jurisdiction, even their ability to decide what appeals to hear) and the Administration (which enforces the court’s rulings, so long as they find them legitimate), because a majority of the nine sitting (unelected) justices say so…

…is the height of arrogance and hubris, backed up largely by two justices whose "relationships with right-wing megadonors” make them feel they have powers and abilities far beyond those of mortal men. Or, to put it more colloquially, that they are invisible and bulletproof.

They aren’t; nor are they supposed to be.

Consider recent reporting in The New York Times about how Chief Justice John Roberts approached the two major Trump cases the court decided last term, on immunity and disqualification. Offered repeated opportunities to rise above the partisan fray, the chief justice instead led the court straight into the muck. Justice Amy Coney Barrett’s concurring opinions (as well as the other separate opinions) in both cases were clear: The majority went further than it needed to go to resolve the disputes. The Times’s reporting, based on leaked confidential memos (itself an extraordinary breach of court protocol), suggests that the majority did this knowing that the rulings would be seen as sweeping victories for Mr. Trump — if not with the specific intent to do just that.

That is precisely the recipe for reform. The history of the country is rife with it. Professor Vladeck’s book on the shadow docket begins with the creation of the modern court early in the 20th century, when legislation “reformed” the court and gave it many of the powers of review and acceptance/rejection of appeals that we think is the norm today (just as we think any change in the number of justices is illegitimate “court packing.” Congress has changed the size of the Court several times since the first Court sat). It can be argued, at the least, that the Roberts Court has abused the powers given the Court a century ago, and it’s time for another reform.

It would, in fact, be a very good argument.