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(Photo by Chip Somodevilla/Getty Images)
Guess what? Members of the Supreme Court are still very concerned about the legitimacy of the Supreme Court. You’ll recall Chief Justice John Roberts’s desperate plea, practically begging folks to see the Court as legitimate. That was rebutted by Elena Kagan, repeatedly, in what was pretty much a direct response to Roberts’s take on the current state of the Court.
Now Samuel Alito has entered the chat.
Alito previously told a judicial conference, “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” and that the Court’s role “doesn’t change simply because people disagree with this opinion or that opinion or disagree with the particular mode of jurisprudence.”
But he wasn’t content to let those words sit. In a comment to The Wall Street Journal, Alito threw a hissy fit that anyone dares question the Court: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
What then does it say about a jurist who would lash out rather than listen when colleagues are leveling fair criticism?
Kagan’s already done a pretty stellar job explaining what’s up to the thick headed like Alito. But make no mistake, the Court’s decision in Dobbs v. Jackson Women’s Health has changed how the nation forever perceives SCOTUS.
Regardless of what you think of abortion, here’s what we know that makes Dobbs distinct: (1) It took away a right that has been enjoyed for almost 50 years. Conservatives attempt to compare the decision to Brown v. Board of Ed. overturning the abominable legal protection of segregation enshrined in Plessy v. Ferguson. But in that instance, the Court — and an unanimous one at that — extended rights instead of curtailing them; (2) After the Dobbs case, sitting U.S. Senators went on record saying they were personally misled when members of the Court testified that they believed Roe v. Wade was established precedent. And then those judges, you know, went ahead and overturned it anyway. Now, let’s put aside questions as to whether those sitting Senators were dumb marks or knowingly accepted the lie when those representations were made, but it remains a continuing part of the Dobbs conversation.
Let’s talk about the other big reason the Supreme Court’s legitimacy is in the toilet: Stolen seats. Mitch McConnell unilaterally decided not to take a vote on Merrick Garland’s Supreme Court nomination. It was a wild shock that had literally never been done before, but he made up some mealy-mouthed excuse and ran with it. Then when the exactly analogous situation arose upon the passing of Ruth Bader Ginsburg, well, McConnell rushed through the nomination of Amy Coney Barrett. These bold shenanigans created the exact margin in one of the most controversial cases of all time and Alito has the unmitigated gall to suggest that he’s SHOCKED that people are questioning the legitimacy of the Court? Get a fucking grip.
Listen, the power of the Court is always tenuous — there’s no army that goes around enforcing the Court’s decisions. But previous Courts have been acutely aware of that fact and chosen to tread cautiously as they make new law. Like when Earl Warren worked overtime to ensure the Brown decision would be 9-0 to ensure it would be viewed as legitimate. Notice that he didn’t callously throw the power of 5+ votes around like Alito’s majority did in Dobbs. The scorched earth rhetoric and slipshod historical analysis in Dobbs were merely window dressing for the majority’s political result.
But here’s Alito, unwilling to even listen to criticism.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
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