You may have noticed that an unusual number of Supreme Court justices have taken to publicly defending themselves – my favorite is Amy Coney Barrett’s we’re-not-partisan-hacks defense – as credible, balls-and-strikes arbiters of American law, unswayed by politics or by the fact that President Donald Trump had been unusually candid when saying he would appoint only justices he was sure would overturn Roe v. Wade.
Not surprisingly, much of this defense comes after the Supreme Court refused, by a 5-4 vote, to put a stay on a clearly unconstitutional Texas law that has effectively banned nearly all abortions in the state and set up vigilante-style justice to enforce the law. Women have been basically forced to leave Texas to get a constitutionally protected abortion. The ruling does not overturn Roe v. Wade. It does seem to many, though, a clear signal that the court is likely preparing the way. Even Chief Justice John Roberts joined in dissent.
The funniest part about Barrett’s political-hacks commentary is that it came during a speech in which she was introduced by – wait for it – GOP Sen. Mitch McConnell, to whom she inarguably owes her seat. You may remember McConnell rushed her confirmation vote only four years after denying Merrick Garland one. And where do you think the speech took place? Yes, yes, at the McConnell Center at the University of Louisville.
As University of Texas law professor Steve Vladeck told Jennifer Rubin in The Washington Post: “I’m hard-pressed to imagine a worse place to give a speech about the court not being partisan than ... at an event in which she was introduced by Sen. McConnell. It’s either remarkably tone-deaf or it’s deliberate. Neither is encouraging.”
You’re welcome to roll your eyes at any point. Or maybe just fasten your seat belts. The court has always been political, but a now-in-place 6-3 conservative majority will be making rulings in the new term, which began Monday, on God, guns and abortion, plus affirmative action and a few other contentious issues.
In the meantime, the public-defense count is up to either four or five justices, depending on how you do the math. Conservative Clarence Thomas gave a similar speech to Barrett’s. Liberal justice Stephen Breyer – the oldest justice and one many progressives are hoping will retire while Democrats still, if barely, control the Senate – said in a Harvard Law lecture that he objects to justices being viewed as “junior-varsity politicians.”
Here’s why people may believe that. If Democrats lose the Senate next year, it is likely that the aforementioned McConnell and his party will never confirm a President Joe Biden nominee to the court, because that’s how they roll. Breyer knows that’s true. And yet.
The question is what all this judicial hand-wringing portends. I can see at least two possibilities. One, that the justices know they’ve stepped in it – particularly after the absurd, late-night “shadow docket” ruling on the Texas law – and may now understand that if they do overturn Roe, they will be pilloried by a considerable number of Americans, for now and possibly for all time. And they’re listening. Two, that they’re trying out their defenses before they do, in fact, overturn Roe, which could happen this term when the court takes up the Mississippi abortion law.
The latest salvo comes from Justice Samuel Alito, whose feelings we – the media, politicians, members of his own court – have apparently hurt by the suggestion that the Supreme Court owed America more than a one-page memo explaining why they would possibly allow a law to go into effect, even temporarily, that has already harmed thousands of women.
I’m having trouble finding much sympathy for Alito, who in a speech at Notre Dame said, “The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way. And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”
The shadow docket refers to cases which require immediate rulings – often on whether to stay an unsettled law – and do not allow for full arguments. As for a cabal, did anyone actually call it that? If so, I’m sure there are many who want to give that person proper credit.
It could be the phrase, I guess, that’s troubling people, although he put this on the press and on politicians and not on his colleague, Elena Kagan, who blasted the so-called shadow docket. In dissenting against the court’s shadow-docket abortion vote, Kagan wrote, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making – which every day becomes more unreasoned, inconsistent and impossible to defend.”
But I don’t think the fact that the Supreme Court’s approval rating has taken a hit – along with virtually every other American institution – has anything to do with shadow dockets. Or with cabals. Now, as for political hackery, that may be closer to the truth.
And poor Alito. Welcome to the world. He didn’t say he’d been threatened or endangered or doxxed. Just, you know, that he found himself on the wrong side of old-fashioned American freedom-of-speech criticism.
Sonia Sotomayor also gave a speech, the fifth justice to do so in recent days, but it wasn’t about defending the court. She spoke of the frustration in having to write so many dissents in the last session. She’ll probably write more this year.
In speaking of the Texas ruling before a group of law students, Sotomayor, who had called it “stunning” in her dissent, said, “There is going to be a lot of disappointment in the law, a huge amount. Look at me, look at my dissents.”
There will be a lot more than disappointment if the court does overrule Roe v. Wade. The Mississippi case – Dobbs v. Jackson Women’s Health Organization – is scheduled to be heard on the first day of December, although the ruling won’t come until much later. The court didn’t have to take this case. It chose to take this case. And if it does overrule Roe, charges of political hackery may be the nicest thing critics will have to say.
Mike Littwin is a columnist for The Colorado Sun, a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.