‘An Illegitimate Court?’: New Fall Term, Renewed Criticism

NEWS ANALYSIS: The U.S. Supreme Court's conservative majority faces pushback from Democrats during the final stretch of the 2022 midterm campaign season, with polls marking a decline in popularity.

(Clockwise from Left) Cardinal Wilton Gregory celebrates the Red Mass at St. Matthew's Cathedral in Washington, D.C. Oct. 2, 2022. In attendance were Supreme Court Chief Justice John Roberts, Associate Justice Amy Coney Barrett, and Associate Justice Stephen Breyer (Ret.). Supreme Court justices pose for an official 2022 photo.
(Clockwise from Left) Cardinal Wilton Gregory celebrates the Red Mass at St. Matthew's Cathedral in Washington, D.C. Oct. 2, 2022. In attendance were Supreme Court Chief Justice John Roberts, Associate Justice Amy Coney Barrett, and Associate Justice Stephen Breyer (Ret.). Supreme Court justices pose for an official 2022 photo. (photo: Screenshot/Official photo / Archdiocese of Washington/Public Domain)

WASHINGTON — Chief Justice John Roberts, Justice Amy Coney Barrett, retired Justice Stephen Breyer and a slew of Catholic U.S. government officials gathered at the Cathedral of St. Matthew the Apostle in Washington, D.C., on Oct. 2 for the annual Red Mass, which calls on the Holy Spirit to guide the work of the nation’s judges and law enforcement officers. 

Bishop John Barres of Rockville Centre, New York, who delivered the  homily quoted Romano Guardini, the 20th-century German theologian and author who taught that the best decisions are “accomplished in silence — not in the clamor and display of superficial eventfulness, but in the deep clarity of inner vision.”

Bishop Barres encouraged members of the congregation to deepen their prayer life in order to withstand the “clamor” of Beltway politics and to clarify and resolve the competing goods in play when they address complex judicial or criminal cases.  

“[W]e need wise counselors to guide us and, most especially, that wisest of counselors — the Holy Spirit, who brings us the gifts of wisdom, understanding and counsel, to let us see through our selfishness and past the boundaries of our own limited intellects,” he said.

The traditional Red Mass, co-sponsored by the Archdiocese of Washington, surely provided a singular, if fleeting, moment of respite for the chief justice as he faced the start of a new term the following day. 

Roberts has spent much of the past year responding to the unprecedented political and social fallout from the Supreme Court’s landmark decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade

The political smears framing Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Barrett as tools of MAGA Republicans has continued during the final months of the campaign season leading up to midterm elections, to the point that voters could be forgiven for thinking that the U.S. Supreme Court itself was on the ballot in November. 

“The justices are more visible than they have ever been because of the significance of their decisions and public remarks and, most of all, because of the amount of attention their critics direct at them,” Adam White, senior fellow at the American Enterprise Institute, a Washington, D.C., think tank, told the Register.

This point is not disputed by experts on both sides of the partisan divide, and some seem prepared to accept the rhetorical broadsides directed at the court as the new normal.

“Most midterms are about the party in charge,” said E.J. Dionne, a Washington Post opinion writer, in an Oct.2 column. “But in this one, two parties count as incumbents: the Democrats, who control the White House and Congress, and the Republicans, who control the Supreme Court.”

Dionne predicted that the outcome of the midterms “will depend in large part on which of the two incumbents draws the most voter anger. … The more the court is in the news, the better it is for Democrats.”

President Joe Biden, in the immediate aftermath of the Dobbs decision, described the justices as “out of control.” Since then, he has mostly toned down his remarks about the court, while other Democrat leaders have continued to challenge its legitimacy. On Oct. 11, during a virtual fundraiser for U.S. Rep. Lisa Blunt Rochester, D-Del., who serves as an assistant whip in House leadership,  the president said the court was “more of an advocacy group these days” than “evenhanded.” 

Roberts, for his part, has firmly pushed back against some, if not all, of the partisan attacks. More recently, he sought to clarify and defend the court’s role under the U.S. Constitution.

“If the court doesn’t retain its legitimate function of interpreting the Constitution, I’m not sure who would take up that mantle,” the chief justice warned in September, during a Colorado Springs, Colorado, conference that followed the release of polling data marking a decline in public confidence with the high court, particularly among Democrats. 

“You don’t want the political branches telling you what the law is,” Roberts said, “and you don’t want public opinion to be the guide about what the appropriate decision is.” 


Barrage of Criticism

But as the chief justice convened the Supreme Court for its new term, this time with the courthouse packed with visitors for the first time since the pandemic, legal scholars told the Register they were worried about the barrage of attacks on the court. 

Though chiefly concerned about the anger and confusion the months-long partisan offensive has generated across the nation, some experts also feared that the politicization of the institution was deepening, noting the leaked draft of the Dobbs decision, as well as the threat of violence, with the foiled attempt to assassinate Justice Kavanaugh in June.

“In my view, the attacks on the court’s ‘legitimacy’ are unsound and damaging,” Richard Garnett, a professor at the University of Notre Dame Law School, told the Register. “They are, for the most part, cynical efforts by actors who simply are disappointed that the court is not delivering the policy outcomes they would prefer.” 

Garnett noted that the court’s new docket, “like the last one, will involve a number of high-profile, controversial cases, and, as usual, commentators’ and critics’ attention will focus almost exclusively on them. However, it is important for Americans to appreciate that the vast bulk of the court’s work involves technical legal questions, not ideological or partisan battles,” he said, noting that the inaccurate and ideologically skewed description of key decisions — not the court’s actual opinion — were to blame for its declining poll numbers. 

“Those who claim or complain that the court is ‘political,’ or even ‘illegitimate,’ simply because the justices do not always deliver their preferred policy outcomes, misunderstand the court and its role in our constitutional system,” said Garnett. 


Alabama Redistricting

The court faces a lineup of important cases that could produce more fireworks.

On Oct. 4, the second day of the new term, justices heard arguments in Merrill v. Mulligan, a high-profile appeal from the Alabama Legislature, which had redrawn maps for its seven congressional districts, only to have the draft challenged by a group of Alabama residents who are Black. 

The residents contend that the new state map, which gave Black voters in Alabama just one majority-minority district — a district in which a racial minority group or groups comprise a majority of the district’s total population — as it had in the past, violated Section 2 of the Voting Rights Act of 1965. 

A lower court, noting that Black voters constitute about 27% of the state’s population, agreed that they should have a second district and ordered the state Legislature to create one. In February 2022, the justices temporarily blocked the lower court’s ruling, so the disputed map will remain in effect for the midterm elections. 

The case hinges on dueling interpretations of Section 2 of the Voting Rights Act that bans any procedure that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race.” That issue may surface when a review of “the totality of circumstances” leads to the conclusion that racial minorities “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

Alabama Solicitor General Edmund LaCour Jr. told the justices during the Oct. 4 oral argument that the state had adopted “race-neutral” principles in its attempt to redraw the map and that Section 2 should be reinterpreted to require evidence of some discriminatory intent to justify the inclusion of a majority-minority district.

Justices from both sides of the ideologically divided court disputed Alabama’s argument. But tensions also surfaced between the justices over Alito’s questioning of the current test used to establish voter dilution, to which Justice Sonia Sotomayor caustically observed, “Indifference to racial inequality is exactly what Section 2 is barring or prohibiting.”


Closely Watched Cases

Alabama’s appeal is one of a number of closely watched cases that scrutinize the constitutionality of race-conscious practices, whether in Native American adoptions that prioritize placements that allow children to remain with their tribal community, the admissions policies of elite universities or in elections.

Amid the extended national reckoning on race that followed the 2020 death of George Floyd in police custody, media outlets and civil-rights activists have focused on two affirmative-action cases: Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707.

The New York Times’ recent coverage of the pair of cases reported that “40 years of affirmative-action precedent,” was at “risk.” 

Harvard’s admissions policies have been repeatedly challenged by Asian American applicants. They contend that they effectively discriminate against prospective students from their community who have stronger applications than many accepted students yet are denied admission because of their race. 

Asian American and White applicants have challenged the University of North Carolina’s admissions protocol. 


Religious Freedom

Meanwhile, free-speech and religious-freedom advocates will be closely following an appeal brought by Christian web designer Lorie Smith, who refused to build a wedding website for a same-sex couple in Colorado. 

The case, 303 Creative LLC v. Elenis, provides the court with a fresh opportunity to balance the constitutional rights of Christian business owners who oppose same-sex civil marriage on religious and moral grounds with state laws barring discrimination based on sexual orientation. 

Specifically, the justices will consider “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

The state of Colorado has defended its anti-discrimination statute, which not only bars Smith from restricting her new wedding business to heterosexual couples, but also prevents her from posting a statement on her website outlining her faith-based beliefs. 

“Prohibiting companies from displaying what would amount to ‘Straight Couples Only’ messages is permissible,” Colorado Attorney General Philip Weiser stated in papers filed with the Supreme Court, “because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment.”

A divided three-judge panel for the U.S. Court of Appeals for the 10th Circuit upheld the state law in question.

However, Chief Judge Timothy Tymkovich issued a stinging dissent that referenced George Orwell, while observing that “the majority takes the remarkable — and novel — stance that the government may force Ms. Smith to produce messages that violate her conscience.”

Smith’s initial lawsuit raised free-exercise issues, but the high court limited the case to free-speech questions. 

“The justices are tiptoeing more carefully when it comes to free-exercise” cases that also touch on free speech, John Malcolm, a legal expert at the Heritage Foundation, told the Register. 

The court “may be more comfortable dealing with compelled speech than free-exercise speech,” he added, predicting that Smith will prevail.


Masterpiece Cakeshop

Back in 2018, the high court delivered a partial victory to Masterpiece Cakeshop owner Jack Phillips, a Christian who refused to bake cakes for same-sex weddings. The justices overturned an order by the Colorado Civil Rights Commission that required Phillips to comply with the customers’ request or face penalties. 

Since then, Phillips has been back in the news after he refused to bake a gender-transition cake for a transgender customer and was found to be in violation of the state’s anti-discrimination statute. His lawyers have appealed the ruling.

If the court sides with Smith in this important case, the news will likely provoke a fresh rhetorical assault. But oral arguments in the case will not take place until 2023, and so the ruling will not be fodder for political strategists during this campaign season. 

That said, Teresa Collett, a law professor at the University of St. Thomas, is deeply worried about the damage wreaked on the court’s standing during the past year. 

“The court has historically played the role of safeguarding our Constitution against both state and federal government attempts to violate our social contract,” said Collett. 

“But we have so politicized the discussion of what the Constitution actually means that people now critique an opinion based on whether they like the outcome, not on whether it is faithful to the text of the statute or the Constitution.”

Experts and lawmakers on both sides of the political divide admit that these aggressive tactics have consequences. 

“If the entity charged with offering the final word on our laws is indeed written off by half the country, that opens up Pandora’s box both politically and democratically,” reported a Washington Post Sept. 13 news analysis of the Democrats’ treatment of the court during the campaign. 

Yet there is no reason to expect that the angry rhetoric will cease after the elections, at least not while a

conservative majority shapes the high court’s jurisprudence.

For this reason, legal experts like Collett urge the public to become better informed about the substance of high-profile cases, even as they call on the justices to write opinions that can be understood by Americans with no legal training. 

At the same time, scholars who support the embattled court would likely agree with the guidance that Bishop Barres provided in his Red Mass homily to judges and law enforcement officers: Keep the “clamor and display of superficial eventfulness” at arms’ length, especially when it comes from Beltway pundits and pollsters.