For Justices, Worries Over the Supreme Court Get a Public Airing

As the Supreme Court’s summer recess comes to an end, it appears as if its headaches are just beginning. Just this week, Chief Justice Roberts and Justice Elena Kagan used public appearances to muse on the court’s “legitimacy,” suggesting that all is not well in the high court’s chambers with another blockbuster term set to begin in less than a month.Chief Justice Roberts, first among the court’s equals, was seen to have suffered a sharp setback in Dobbs v. Jackson Women’s Health, where the court’s conservative wing reportedly declined his invitation to narrow Roe v. Wade and instead fell in line behind Justice Samuel Alito’s inclination to nix it altogether. A decade ago, Chief Justice Roberts had pursued the same strategy in judicially splitting the baby to preserve ObamaCare. This court, though, did not display the appetite for the kind of legal metaphysics that would have been required to both uphold Mississippi’s ban on abortion that was under consideration and leave Roe as black letter law. The chief, who at his confirmation famously remarked, “I have no agenda,” and said, “it’s my job to call balls and strikes, and not to pitch or bat,” is seen as more devoted to the institutional standing of the court than his more ideologically driven colleagues. It is likely that he sought not so much to save Roe as a point of law as to shield the court from controversy. So it was noteworthy when Chief Justice Roberts used the occasion of the Bench & Bar Conference of the United States Court of Appeals for the 11th Circuit to insist that while criticism of the court “is entirely appropriate,” just simply because “people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”The chief explained that the “role doesn’t change simply because people disagree with this opinion or that opinion or with a particular mode of jurisprudence.” He said the constitutional notion of separation of powers means: “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.”Justice Kagan, while not explicitly crossing the chief, sounded a different kind of warning, blaming the court and not its critics. Speaking at Temple Emanu-el at New York City, she warned, “Judges create legitimacy problems for themselves” when they “stray into places where it looks like they’re an extension of the political process or when they’re imposing their own personal preferences.”In an allusion to the court’s shifting countenance, Justice Kagan argued that Americans need to be reassured that “changes in personnel don’t send the entire legal system up for grabs.” In July, Justice Kagan opined that “if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.”A third justice also used the Bench & Bar Conference to address yet another front on which the court has struggled to find its footing. Justice Neal Gorsuch called the committee that Chief Justice Roberts appointed to investigate the leak of the Dobbs draft opinion “busy” and expressed his hope that “we get to the bottom of this sooner or later.”

For Justices, Worries Over the Supreme Court Get a Public Airing

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