Chris Geidner flags today an appearance by CBS News’ Chief Legal Correspondent Jan Crawford’s attacking Supreme Court critics who call the Court and its current jurisprudence “corrupt.”
“There is a narrative the Supreme Court is corrupt,” she told Face The Nation. “We saw that emerge in the wake of the Dobbs decision that overturned Roe v. Wade and now we see it that they’re in the tank for Trump. Not only is that narrative over-reported, it is patently false, and it is dangerous for the institution and the public’s faith and confidence in the rule of law.”
Chris has more of Crawford’s quotes. And he makes clear the most telling thing about Crawford’s defense is that she doesn’t even address the arguments against the Court’s practices and behavior. She just asserts it in a ‘the King can do no wrong because he’s the King’ kind of fashion. But this one passage is enough to make the point. Not only is the Court demonstrably not corrupt, Crawford claims, it is also dangerous for the Court to have itself be called “corrupt”. And, she claims, what is dangerous or threatening to this Court threatens the rule of law itself. In other words, you might say, the danger to the state is that child in the third row saying the King is naked.
I’ve been using this language for several years so I feel somewhat addressed, albeit it indirectly. So I wanted to take a moment to note several category errors Crawford makes.
First, when Americans think about “corruption,” they tend to think of venal corruption —bribes and kickbacks and sweetheart deals. But that is only one kind of corruption and it is usually not the most insidious. It is relatively easy, as a law enforcement matter, to at least keep venal corruption within the bounds with prosecutions and deterrents. It is also significantly self-correcting. Justice Thomas should face public accountability certainly. But he is really only hopping on the offered gravy train of people who he would support through his decisions — whether he had to buy his own mobile home or not.
The dictionary definition of corruption focuses on dishonest or fraudulent conduct, usually but not solely involving bribery. The secondary and older definition is the act of taking something in its healthy form, in its prescribed and proper form, and pervert it into something different. The corruption of the Court is bound up with both those definitions. What the current Supreme Court has done is take the proper and constitutional role of the Court and wrench it into something very different. That very different thing is corrupt, unconstitutional and undermines democratic self-government itself. It has moved from a final Court of appeal, which reviews cases and renders decisions by a range of possible jurisprudential philosophies — more conservative or liberal, progressive or libertarian — and changed it into a body which follows no consistent or coherent mode of interpretation or even the most basic procedures and processes for how cases are supposed to make their way from trial courts and finders of fact up through the appellate process. It is a “choose your own adventure” jurisprudence, mixing and matching doctrines based on desired outcomes, frequently manufacturing entirely new ones based on ignoring the explicit language of the constitution itself. And all for the consistent purpose of advancing the partisan and/or ideological interests of the Republican Party.
There is of course a wide range of potentially different ways to make good faith interpretations of the Constitution — ones that are more tightly bound to the text or more expansive in their reading. But this Court has for the last decade, and especially since 2021, been moving at breakneck speed toward an outcome-based approach that is now impossible not to recognize for what it is. Democrats can now see clearly that there is actually no real possibility for democratic self-government in the United States — if and when the American people decide to put Democrats in power. This is a form of corruption far more dire than one or two justices living the high life on some billionaire’s dime.
The reason it is important to identify the Court as corrupt is because it is in fact corrupt. And the most foundational way to preserve the public’s confidence in the legitimacy of the courts is for the courts to, in fact, do their job in a legitimate fashion. It is certainly true that there are insidious forces in any society trying to break down trust in public institutions by various means. But in addition to having a puerile understanding of what constitutes corruption Crawford — and too many others in positions like hers — seem oblivious to the role of substantive behavior and proper conduct as a driver of both public perceptions and reality.
I should make clear that I am focusing on Crawford’s comments not because she’s worse than many others. They just typify a particular point of view which, until the last two or three years, was pervasive within the legal academy and what we might call the elite judicial-academic complex. So I’m actually glad that these defenses are being made publicly because they signal in the clearest way that the battle over the Court’s legitimacy and corruption is being joined. And that battle is the necessary one to fix what is currently broken in the American constitutional system. And the Supreme Court and it’s corruption are the central thing, in that it’s way more important than Trump and Trumpism itself.