The Legitimacy of the Supreme Court: Why Sotomayor, Roberts, and Thomas are so Clueful about the Leaky Roe v. Wade
Given how the court’s conservative majority tossed aside decades of precedent to overturn Roe v. Wade last year, it is hard to see how Roberts’ description of the court as “a very cautious institution” – to say nothing of his assertion that the court’s processes are working well – squares with reality.
When courts become extensions of the political process, people see them as attempts to impose personal preferences regardless of the law, as Elena said in a talk this month.
The majority has overruled them because it hates them and now it has the votes to throw them out. The rule of law is replaced by a rule by judges.
Justice Amy Coney Barrett said last year at the McConnell Center at the University of Louisville that this court is not comprised of a bunch of partisan hacks.
That the justices are discussing the legitimacy of the Supreme Court in the open is reason enough for us to discuss the legitimacy of the Supreme Court as well. And what’s striking about the comment from Thomas in particular is how it roots the challenge to the court’s legitimacy in the inside baseball surrounding the leak rather than public discontent with its decisions that Kagan spoke about. In a similar disconnect, Roberts and Alito both take for granted the legitimacy of the Supreme Court and its decisions, as if its power were inherent to the institution — part of the natural order of things rather than something that’s been mediated by politics throughout the court’s history. Roberts even asserts the exclusive right of the court to say what the law is, as if the institution exists above and beyond the constitutional system, accountable to no one but itself.
The justices come back to this theme again and again. Justice Sotomayor spoke to the audience not to lose their faith in the court system and to hope the justices can regain the confidence of the public.
Pointing out hypocrisy is sometimes effective. The most striking feature of all this liberal dissent, though, is how fundamentally conservative it is. It is better for liberals to leave an institution in crisis than to do other things in dissent. So is owning conservatives by suggesting that their interpretive methods could serve liberal ends if there were more liberal votes.
The USA Today Report on the 2016 High Court: A State of the Art and a Problem That Will Not Happen to the Future of the High Court
A member of the USA Today board of contributors is an attorney named Raul A. Reyes. You can follow him on social media. His own opinions are expressed in this commentary. Read more opinion at CNN.
Student debt relief, immigration and labor Relations are some of the cases that will be argued at the Supreme Court next week. The top US court will hear from some of the nation’s best attorneys on issues impacting the daily lives of Americans.
Any downside of cameras is outweighed by the immense benefits of judicial openness. The high court is not interested in reform. The only way to get to that outcome comes via the legislative branch. The new Congress should mandate camera access at the high court, a move last attempted in bipartisan legislation in 2021. The measure failed to advance in Congress.
But many people can’t or don’t know how to readily access those transcripts, which in any case, don’t convey tone of voice, body language and other nuances of the exchanges between the justices and attorneys appearing before them during oral arguments.
Competition for limited seats can be fierce and often involves camping out the night before to be allowed in.
Why should access to oral arguments be limited to the well-connected? There are people who live in or near Washington, DC, who may possess the ability to spend hours at the Supreme Court.
Americans have shown that they are interested in politics when they get the chance, and this can’t be denied. Millions of people watched the January 6 committee hearings which were for Trump’s first and second impeachment trials.
It is true in regards to the public’s perception. The Supreme Court is low in trust. According to Gallup, only 4 in 10 Americans say they approve of how the Supreme Court is handling its job; nearly 6 in 10 disapprove.
Last year’s leak of a draft copy of the Dobbs decision prior to the official announcement was among the controversies that Roberts failed to address in his annual report.
As the high court grapples with a profound legitimacy crisis, bringing transparency into its decision-making process would be good for the public – and for the court itself. Opening its deliberations to greater public scrutiny can only help this beleaguered institution.
Nine justices of the Supreme Court spent nearly three hours debating the meaning of Section 230 of the Communications Decency Act. Tuesday’s argument in Gonzalez v. Google marked the first time that the Supreme Court might interpret the 26 words that protect online platforms from liability for user content.
In Florida, a bill was being proposed to make it easier to bring defamation lawsuits, and it could potentially be a more serious threat to free speech. A federal judge struck down the New York law that regulates online hate speech. A judge ruled against a California Covid misinformation law. And in DC, the justices are also considering whether to rule on the constitutionality of Texas and Florida laws that restrict the ability of social media platforms to moderate user content.
But some justices are unconvinced that Sullivan remains necessary for that commitment. Justice Clarence Thomas has written three times that he wants the Supreme Court to revisit Sullivan, pointing to “real-world effects” such as the proliferation of PizzaGate and other online falsehoods. Justice Neil Gorsuch has joined his call, in part due to the changes brought by social media. “Now, private citizens can become ‘public figures’ on social media overnight,” Gorsuch wrote. They can be dubbed famous because of their notoriety in certain channels of the media, even though they remain unknown in most.
Under the bill, a public figure would no longer need to show actual malice to win a defamation case if the allegation against the figure wasn’t related to the reason for the person’s public status. So if a person is publicly known for being elected president or governor, and a news organization publishes an investigation about that person’s private or business life unrelated to elected office, that report would not get the special liability protection provided by the Sullivan decision.
The bill goes much further than this attempt to hobble the press. It was made clear that defamation rules on the internet would apply, which could include statements made at school board hearings and other public meetings.
When a person is accused of discrimination on the basis of race, gender or sexual orientation, that accusation is considered enough to get them sued for defamation. Any person accused of bigotry based on sexual orientation or gender identity could file a defamation lawsuit and be virtually guaranteed of winning by saying the discrimination was based on personal religious or scientific beliefs. The penalty for calling someone a bigot would be a minimum of $35,000.
DeSantis, Kagan, the New York Times v. Sullivan and the State of the Press: What is the Definition of the Public Figure?
Mr. DeSantis, who appears to be preparing for a 2024 presidential campaign, has been railing against press freedoms for several years in a clear appeal to likely Republican primary voters. The bill was introduced in the Florida House by one of his supporters and has a chance of passing; a slightly milder version was filed in the State Senate.
If enacted, the House bill would almost instantly be challenged in court, but its backers are counting on that. In public statements, they have said they want the bill to be used as a vehicle to get the Supreme Court to overturn New York Times v. Sullivan and have noted that two justices, Clarence Thomas and Neil Gorsuch, have called on the court to reconsider that decision. The current court has a poor record of respecting long-term precedents that are supported by the public.
There may be room for discussion on the precise definition of “public figure,” which has been interpreted in various ways by the Supreme Court and lower courts over the past six decades. Even Justice Elena Kagan, in a 1993 journal article long before she joined the court, expressed interest in determining whether the term had been too broadly defined in the years after Sullivan, though she applauded the overall decision.
If other states copy the Florida sledgehammer bill’s language, it will cause enormous damage on the way to the high court. The principle that debate should be robust and open was stated by Justice Brennan when he wrote the court’s opinion. He wrote that it may include caustic attacks on government and public officials. That principle has not changed over the years, and any person who treasures their right to speak freely should resist politicians who want to silence them.