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Late last week as we were discussing Roe, the corruption of the Court and various avenues to constrain that corruption, I got a series of emails from TPM Reader lawyers experiencing what amounts to a crisis of faith in the assumptions of their profession. They were remarkably similar. It was clear the debate had struck a very particular nerve.
So, for instance, TPM Reader SB wrote saying he entirely agrees with the need to codify Roe and if necessary take further steps to constrain the Court if they then strike down such a codification. But then he added this.
However, I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.
I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.
TPM Reader SD wrote in with similar agreement and then wrote this.
Something that has always been unthinkable to many of us in the legal community, has now become not just thinkable, but undeniable — and that is the recognition that defending our democracy and defending the legitimacy of the Supreme Court are no longer compatible. You can’t be on the side of the virus and the cure at the same time. I may not like it, but it’s still obvious that proving to as much of the public as possible the complete lack of legitimacy in the Court while it’s dominated by its far right core has become a necessary step to any cure. In the past, I have consistently defended the judiciary and more broadly the concept of judicial independence. But given the choice between defending the Supreme Court and defending our democracy, it isn’t a close call.
All of these emails were in response to a post entitled “Purely a Political Battle, Not a Legal One.” Most invoked that title, which seemed to cut deeply. My use of that phrase is perhaps slightly over-interpreted: I did not mean all legal questions are really just politics. I’m speaking about the dynamics of Dobbs and other recent Court decisions specifically. It is not that all law and interpretation of the law is mere politics. It is that this Court through its corruption is making it so. But even with that clarification, these TPM Readers are right. A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment. This is compounded by the fact that many of the core beliefs of the liberal legal profession are still rooted in the decisions of the Warren Court and that vision of the Court as a vindicator of the rights of those left unprotected by the political process.
Lawyers, judges and law professors are understandably resistant to the idea that the process of law is no more than an artful and flexible wrapping paper in which we package expressions of power. But that’s not what any of this means. This isn’t ditching our belief in the rule of law or the independence of the judiciary, or more broadly abandoning matters of principle in the face of some great public emergency. Everything we’ve been discussing here is quite consonant with a proper reverence for the law and democratic governance.
The core principle more deeply embedded in the constitution than any other is that there are no absolute powers, no final and unchallengeable authorities. The President is the President. But she can also impeached. Her vetoes can be overriden. The reach of her powers can be stymied by the power to appropriate or refuse to appropriate monies. The Congress has the power to make the law, even without any role or restraint from the executive. But the executive’s sole ability to enforce the law checks that power. This is the overriding premise of the constitutional order: There are no unchecked or absolute powers or authorities. In recent days I’ve heard “judicial supremacy” tossed around as a given, a cornerstone of the American system that some now propose to toss aside. But there are no supremacies among the contending powers of the national government. Why would we think that the Court would be the only part of the constitutional system free of any such restraints, essentially absolute in its authority? There is a reason the constitution provides a number of tools to limit the Court’s power, to change its composition, while also providing privileges and protections against domination by the other branches. The judiciary is not designed to be free of control of the other branches past the point of an individual judge’s Senate confirmation.
The legitimacy and power of the Court rests on the public’s belief that it is making a good-faith effort to wrestle with the numerous questions arising from the Constitution, governmental actions and the law-making process. This will always involve some bias, difference of opinion, contending ideological perspectives. But what we have seen in this last decade — and like a dam giving way in this just-concluded term — is something specific and different. It is a Court operating expansively, routinely overruling the actions of the other branches not according to any coherent set of principles but to advance the ideological and, increasingly, the nakedly partisan goals of the Republican Party. Indeed, it is a Court routinely overruling or tossing aside its own previous decisions or — perhaps even more telling — simply ignoring them for their situational inconvenience. When the plain text of the Constitution fits the bill, it gets the call. When a new doctrine is needed, it gets manufactured and sent on to the field. The Roberts Court — or perhaps one should now say the Alito Court — is originalist on the streets but activist in the sheets.
This corruption has been the centerpiece not only of the Roberts Court but his individual role on the Court. He has fought what has amounted a rearguard action, seeking the same goals but fearful of acting so nakedly or corruptly as to trigger a backlash that would endanger not so much the power of the Court but the goals of the project of which he is very much a part. Over time he has lost that battle — the drama that was playing out in that leaked Dobbs draft in the Spring.
In recent years it has become a commonplace assumption really across the political spectrum that the Court will try to block or restrain any action by a Democratic President or Congress. The only question is what angle it will find convenient to meet the purpose. We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption. It is hardly an attack on the rule of law or judicial independence to seek to restrain those who have so successively corrupted each. The signature of what we should now call the Thomas-Alito Court is that its six to three majority — founded on corrupt actions — has freed it from any feeling of constraint. Its power is absolute. They can do and are doing whatever they want and appear to believe there is no available check on their power.
Who is to make these determinations over what it is a legitimate or a corrupted Court? That brings us back to an older and truer understanding of the Constitution’s role in our republican order that has been obscured by the left and the right’s flirtation with judicial supremacy. Each branch of government has a legitimate and necessary role in interpreting the Constitution’s meaning. The judiciary has a specific and critical role in doing so through the equal administration of justice. So again, who is to make those determinations? The Constitution’s ultimate ownership is in the hands of the people operating collectively through the machinery of the constitutional order. Which is to say that corruptions of the Court are to be addressed ultimately by the political process, by the people, who own it.
The Constitution makes this difficult and indirect, requiring both of the other two branches of government to act in concert and do so through indirect means, through limits on jurisdiction and unless with large super-majorities through adding judges rather than removing them. But these are all legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.
