Rather than knocking down straw men or attacking their critics, the justices (and their defenders) would do well to explain why the sharpest criticisms of the Court's recent behavior are *wrong.*
I’m not a lawyer or a judge. I try not to sound like a conspiracy theorist. However, I do believe the 6 conservative justices hold more fealty to the Heritage Foundation than to the U.S. Constitution&laws.
Thank you for this in-depth analysis of SCOTUS. Most Americans are oblivious to how the few but far reaching decisions made by SCOTUS are detrimentally reshaping our democracy. Skeptical at best is how we should approach the SCOTUS "rulings". But when you take into consideration all the extraneous but interconnected issues and concerns related to said “rulings” SCOTUS is derelict in its duties to guide the lower courts in resolving cases with carefully considered precedent and constitutional adherence. ACB is just being evasive and disingenuous when she says the SC does not want to “give the impression that we have finally resolved the issue”. Where is the follow up to the emergency docket rulings? Does SCOTUS even care that the lower courts’ decision making process is being undermined and hindered? And what is the end game of the “supreme” court? If they overrule all previous precedent the lower courts become obsolete — SCOTUS will become obsolete. Are they trying to take away the right to obtain judicial remedy? The Roberts court is bringing both shame and disgrace on our judicial system and the nation. It shows a complete and utter disdain towards those who are not seated with them on the bench and even towards three of their own colleagues.
As an aside, the fact that Amy Coney Barrett is the voice of the court right now is laughable. Does she want to sell more copies of her book — you bet! Does she provide the approachable face of the mom next door — you bet! Is she putting a
"These responses continue to suggest that, for whatever reason, they either don’t think the Court’s credibility is under serious threat so long as its support erodes mostly from one side of the aisle, or, even worse, they don’t care."
Couldn't your analysis here also be a reasonable explanation for Justice Barrett's response on Fox News yesterday? Ascribing some of their behavior to arrogance may seem reductionistic, but also feels sadly reasonable.
These justices, (particularly the conservative ones, for a number of reasons, not excluding privileged lives), seem to live in a bubble.
Perhaps the 6 are so focused on achieving the unitary executive, they understand deep down that when the Grail is had the opinion of the Court will no longer matter.
The more that the Court and its defenders are not at all invested in responding to their critics on the critics’ terms, and the more that they are disinterested in shoring up the eroding support for the Court from those who don’t necessarily agree with its bottom lines, the more they are sacrificing the Court’s long-term health for the sake of their short-term ideological agenda.
I think what would be especially instructive would be to read up on social dominance.
I think the dismissive attitude on the right is largely due to a perception that "I'm winning" and "we own you". As childish as that seems, I think we have to admit that the right has a huge capacity for being exactly that: childish.
From Trump's tariffs, to armed masked men delivering a sick sort of revenge, to lying and cheating it's all about dominance.
You can find it on budget priorities and healthcare policies too.
It's hard to elevate the arguments of the right when their behavior betrays damaged childhood psyches that prefer "my turn" over healing.
They are authoritarians because that is probably all they know and you can't show empathy, kindness nor decency when it's your turn "to kick some butt". It's certainly been their view on race where to feel better about oneself they require the sugar high of superiority. Life requires enemies to slay.
First, thanks for acknowledging my request for your opinion on Bluesky yesterday. I’m a proud owner of your book The Shadow Docket. You’re correct that the conservative wing of SCOTUS is gaslighting the public. Just their rulings on “non-resolved” issues tend to make all of us think they are indeed actually resolved in private, without the full period being put on the sentence. We only get an actual explanation of the opinion on shadow docket rulings when a member’s arrogance (so it seems) outweighs their judicial credibility.
One quality the 6 members of the Court’s majority and their defenders seem to have in common, perhaps along with that side entire side of the aisle, is a profound lack of humility.
Thank you for all your piercing analyses of the conduct, contentions and opinions of SCOTUS justices--and for those additional insights about the first Court and the first justices!
Too many of those who criticize the Court's critics presume or pretend that we the people should merely (blindly) revere SCOTUS justices like high priests of some arcane religion that is beyond the grasp of our simple minds. Those people advocate the opposite of the command of the First Amendment that the U.S. government must not attempt or purport to accomplish an "establishment of religion."
As SCOTUS emphasized in Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978), “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Criticism of judicial conduct “cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
Speaking of the first justice (James Wilson) and first chief justice (John Jay) and criticism of SCOTUS justices' conduct, contentions and opinions, the opinions of Chief Justice Jay and Justice Wilson in Chisholm v. Georgia should always be borne in mind. They explained how the text and structure of our Constitution secured the sovereignty of the people over all our public servants.
The dissenting opinion of Justices Souter, Stevens, Ginsburg and Breyer in Alden v. Maine, 527 U.S. 706 (1999) (discussing the insights offered by three framers of the Constitution in Chisholm v. Georgia) was highly insightful. They all emphasized the sovereignty of the people, which necessarily includes our right and power to criticize and propose improvements on the manner in which our public servants purport to perform their public service.
Multiple current SCOTUS justices in District of Columbia v. Heller, 554 U.S. 570 (2008) emphasized a related point that all justices always should bear in mind: "In interpreting [our Constitution's] text," we must bear in mind the crucial fact that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." That statement (repeated by generations of SCOTUS justices) underscores a crucial truth about our Constitution and our power and duty to read and think about it for ourselves.
For years (from at least 1787 to 1791, many enlightened Americans studied and discussed the meaning of the text, structure and purpose of our written Constitution (documenting the constitution of one nation of one people) without the benefit of much, if any, insight from any SCOTUS justice. Our Constitution was written, discussed thoroughly and ratified by the people throughout the nation long before any federal judge was appointed. Also without the benefit of any insight by any federal judge, the first 10 amendments (commonly called our Bill of Rights) were discussed by the people, written by Congress and ratified by the states.
The people have every right and reason to think for ourselves and speak about how current SCOTUS justices are violating their oaths of office and our Constitution.
I realize my comment may sound simplistic. I strongly feel, at least in part, the SC is basing some of their shadow docket rulings in trumps favor because deep down they are actually afraid he will defy their orders. Then what once that is broadcast for all the world to see? They'd become irrelevant. They are more than aware it was their decision in early July last year to grant him almost full immunity. They refused to even entertain the idea of Jack Smith possibly winning a judgment against Trump. So instead a snap decision was made to protect Trump at all costs. Constitutional law be damned!
It has been suggested before that the Court may be acting out of fear of Trump, but I'd place my bet on it being due to real support for the unitary executive theory. As one example, it has often been mentioned that Chief Justice Roberts has long supported that theory, long before Donald Trump entered politics.
Yes great point. I've read about this as well. I still feel there is a touch of fear there too. ACB on Fox yesterday trying to put some legitimacy back in the court. Paraphrasing here, she says all we're really doing is making sure the rules of the law are followed. HUH? I guess it's some more of the rules for thee but not for me crap.
A legitimate court would explain its reasoning for anything and everything that it regarded as binding. “Because I said so” is never a good enough reason for regarding any ruling as proper, but this Court seems to believe otherwise. And that is why this Court has lost its legitimacy and its defenders are left with nothing but personal attacks.
The next step in this dismal process may be for district courts to stop recognizing any precedential effect for Supreme Court pronouncements. The authority of the Supreme Court to establish precedent rests entirely on a combination of custom and persuasiveness. The latter has been eroding for years in cases with a political dimension, and at this point it is almost entirely gone. That leaves only the bulwark of custom. But repeated abuse is rapidly shredding that, too. What happens when the Supreme Court's authority is recognized only in cases on direct appeal to it, and at the same time the Court is inundated with appeals because lower courts are routinely ignoring it?
Department of State v. AIDS Vaccine Advocacy Coalition is a striking example of the problem with these unexplained emergency docket rulings. I’m surprised it hasn’t received more attention. It involves two blatant violations of the Impoundment Control Act by the Trump administration. As Justice Kagan’s dissent points out, the administration’s main defense—that only the Comptroller General can sue to remedy such violations—contradicts the plain language and entire background of the Act. It's hard to see any possible justification for the Court's action, which not only seems wrong on the merits but condoned the administration’s bad faith tactics. Worst of all, this supposedly interim ruling effectively mooted the case by allowing the administration to unilaterally cancel billions of dollars appropriated by Congress.
I think the MAGA Six have decided to be as obtuse and vague as possible in order to continue giving the Trump regime room to usher in the white Christian nationalism they all crave.
Judeo-Christian nationalism, to be more precise, though I suppose the "Judeo" part is implied since conservative Christians tend to focus on the Old Testament and everything in the New Testament except the Gospels.
Thompson's related arguments, which I accept, are (1) that the law, although a tool of the ruling class, is not only superstructure and not only a tool of the ruling class; (2) that, to retain its legitimating function, the law also from time to time has to be just and has to restrain the otherwise arbitrary power of the ruling class.
Meanwhile -- seeing the arc from the Patriot Act through "stay-at-home" orders to Trump (2024) to the regime's current war crimes in the Caribbean and abrogation of constitutional rights in the "Homeland", mostly licensed by the courts -- I reluctantly conclude that the ruling class is winding up the rule of law and that the process is accelerating. The orders have come down from on high, on a need-to-know basis, which includes the chief justice. Thus, the Supreme Court's majority, unfortunately, does not care that it is burning up its own credibility and the legitimizing function of the rule of law as a star burns through hydrogen, next helium, and finally heavier elements on its way to nova and supernova.
Perhaps the ruling class feels too threatened by even the few remaining restraints. Perhaps its greed has got the better of its judgment. Or perhaps it has rationally decided that the productive phase of capitalism is over (not least, it enabled too many social rights) and the looting phase is in full bloom, what no amount of legitimation methods can hide. Thus, consent, which requires some adherence to the rule of law, is being replaced by fear created by shock-and-awe brought home.
"The illusion of freedom will continue as long as it’s profitable to continue the illusion. At the point where the illusion becomes too expensive to maintain, they will just take down the scenery, they will pull back the curtains, they will move the tables and chairs out of the way and you will see the brick wall at the back of the theater.” --Frank Zappa
I’m not a lawyer or a judge. I try not to sound like a conspiracy theorist. However, I do believe the 6 conservative justices hold more fealty to the Heritage Foundation than to the U.S. Constitution&laws.
Thank you for this in-depth analysis of SCOTUS. Most Americans are oblivious to how the few but far reaching decisions made by SCOTUS are detrimentally reshaping our democracy. Skeptical at best is how we should approach the SCOTUS "rulings". But when you take into consideration all the extraneous but interconnected issues and concerns related to said “rulings” SCOTUS is derelict in its duties to guide the lower courts in resolving cases with carefully considered precedent and constitutional adherence. ACB is just being evasive and disingenuous when she says the SC does not want to “give the impression that we have finally resolved the issue”. Where is the follow up to the emergency docket rulings? Does SCOTUS even care that the lower courts’ decision making process is being undermined and hindered? And what is the end game of the “supreme” court? If they overrule all previous precedent the lower courts become obsolete — SCOTUS will become obsolete. Are they trying to take away the right to obtain judicial remedy? The Roberts court is bringing both shame and disgrace on our judicial system and the nation. It shows a complete and utter disdain towards those who are not seated with them on the bench and even towards three of their own colleagues.
As an aside, the fact that Amy Coney Barrett is the voice of the court right now is laughable. Does she want to sell more copies of her book — you bet! Does she provide the approachable face of the mom next door — you bet! Is she putting a
dubious spin on SCOTUS — hell yes!
"These responses continue to suggest that, for whatever reason, they either don’t think the Court’s credibility is under serious threat so long as its support erodes mostly from one side of the aisle, or, even worse, they don’t care."
Couldn't your analysis here also be a reasonable explanation for Justice Barrett's response on Fox News yesterday? Ascribing some of their behavior to arrogance may seem reductionistic, but also feels sadly reasonable.
These justices, (particularly the conservative ones, for a number of reasons, not excluding privileged lives), seem to live in a bubble.
Perhaps the 6 are so focused on achieving the unitary executive, they understand deep down that when the Grail is had the opinion of the Court will no longer matter.
The more that the Court and its defenders are not at all invested in responding to their critics on the critics’ terms, and the more that they are disinterested in shoring up the eroding support for the Court from those who don’t necessarily agree with its bottom lines, the more they are sacrificing the Court’s long-term health for the sake of their short-term ideological agenda.
well said by Steve, also.
I think what would be especially instructive would be to read up on social dominance.
I think the dismissive attitude on the right is largely due to a perception that "I'm winning" and "we own you". As childish as that seems, I think we have to admit that the right has a huge capacity for being exactly that: childish.
From Trump's tariffs, to armed masked men delivering a sick sort of revenge, to lying and cheating it's all about dominance.
You can find it on budget priorities and healthcare policies too.
It's hard to elevate the arguments of the right when their behavior betrays damaged childhood psyches that prefer "my turn" over healing.
They are authoritarians because that is probably all they know and you can't show empathy, kindness nor decency when it's your turn "to kick some butt". It's certainly been their view on race where to feel better about oneself they require the sugar high of superiority. Life requires enemies to slay.
First, thanks for acknowledging my request for your opinion on Bluesky yesterday. I’m a proud owner of your book The Shadow Docket. You’re correct that the conservative wing of SCOTUS is gaslighting the public. Just their rulings on “non-resolved” issues tend to make all of us think they are indeed actually resolved in private, without the full period being put on the sentence. We only get an actual explanation of the opinion on shadow docket rulings when a member’s arrogance (so it seems) outweighs their judicial credibility.
One quality the 6 members of the Court’s majority and their defenders seem to have in common, perhaps along with that side entire side of the aisle, is a profound lack of humility.
The SCOTUS 6 is just making stuff up. Full stop. The only coherent thread to their rulings is: the #DirtyOldMan wins.
Thank you for all your piercing analyses of the conduct, contentions and opinions of SCOTUS justices--and for those additional insights about the first Court and the first justices!
Too many of those who criticize the Court's critics presume or pretend that we the people should merely (blindly) revere SCOTUS justices like high priests of some arcane religion that is beyond the grasp of our simple minds. Those people advocate the opposite of the command of the First Amendment that the U.S. government must not attempt or purport to accomplish an "establishment of religion."
As SCOTUS emphasized in Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978), “the law” (including the First, Fifth and Fourteenth Amendments) “gives judges as persons, or courts as institutions” absolutely “no greater immunity from” our “criticism” (or our Constitution) “than other persons or institutions.” Criticism of judicial conduct “cannot be punished” merely “to protect the court as a mystical entity” or “judges as individuals or as anointed priests set apart from the community and spared the criticism to which” all “other public servants are exposed.”
Speaking of the first justice (James Wilson) and first chief justice (John Jay) and criticism of SCOTUS justices' conduct, contentions and opinions, the opinions of Chief Justice Jay and Justice Wilson in Chisholm v. Georgia should always be borne in mind. They explained how the text and structure of our Constitution secured the sovereignty of the people over all our public servants.
The dissenting opinion of Justices Souter, Stevens, Ginsburg and Breyer in Alden v. Maine, 527 U.S. 706 (1999) (discussing the insights offered by three framers of the Constitution in Chisholm v. Georgia) was highly insightful. They all emphasized the sovereignty of the people, which necessarily includes our right and power to criticize and propose improvements on the manner in which our public servants purport to perform their public service.
Multiple current SCOTUS justices in District of Columbia v. Heller, 554 U.S. 570 (2008) emphasized a related point that all justices always should bear in mind: "In interpreting [our Constitution's] text," we must bear in mind the crucial fact that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." That statement (repeated by generations of SCOTUS justices) underscores a crucial truth about our Constitution and our power and duty to read and think about it for ourselves.
For years (from at least 1787 to 1791, many enlightened Americans studied and discussed the meaning of the text, structure and purpose of our written Constitution (documenting the constitution of one nation of one people) without the benefit of much, if any, insight from any SCOTUS justice. Our Constitution was written, discussed thoroughly and ratified by the people throughout the nation long before any federal judge was appointed. Also without the benefit of any insight by any federal judge, the first 10 amendments (commonly called our Bill of Rights) were discussed by the people, written by Congress and ratified by the states.
The people have every right and reason to think for ourselves and speak about how current SCOTUS justices are violating their oaths of office and our Constitution.
I realize my comment may sound simplistic. I strongly feel, at least in part, the SC is basing some of their shadow docket rulings in trumps favor because deep down they are actually afraid he will defy their orders. Then what once that is broadcast for all the world to see? They'd become irrelevant. They are more than aware it was their decision in early July last year to grant him almost full immunity. They refused to even entertain the idea of Jack Smith possibly winning a judgment against Trump. So instead a snap decision was made to protect Trump at all costs. Constitutional law be damned!
It has been suggested before that the Court may be acting out of fear of Trump, but I'd place my bet on it being due to real support for the unitary executive theory. As one example, it has often been mentioned that Chief Justice Roberts has long supported that theory, long before Donald Trump entered politics.
Yes great point. I've read about this as well. I still feel there is a touch of fear there too. ACB on Fox yesterday trying to put some legitimacy back in the court. Paraphrasing here, she says all we're really doing is making sure the rules of the law are followed. HUH? I guess it's some more of the rules for thee but not for me crap.
A legitimate court would explain its reasoning for anything and everything that it regarded as binding. “Because I said so” is never a good enough reason for regarding any ruling as proper, but this Court seems to believe otherwise. And that is why this Court has lost its legitimacy and its defenders are left with nothing but personal attacks.
The next step in this dismal process may be for district courts to stop recognizing any precedential effect for Supreme Court pronouncements. The authority of the Supreme Court to establish precedent rests entirely on a combination of custom and persuasiveness. The latter has been eroding for years in cases with a political dimension, and at this point it is almost entirely gone. That leaves only the bulwark of custom. But repeated abuse is rapidly shredding that, too. What happens when the Supreme Court's authority is recognized only in cases on direct appeal to it, and at the same time the Court is inundated with appeals because lower courts are routinely ignoring it?
Department of State v. AIDS Vaccine Advocacy Coalition is a striking example of the problem with these unexplained emergency docket rulings. I’m surprised it hasn’t received more attention. It involves two blatant violations of the Impoundment Control Act by the Trump administration. As Justice Kagan’s dissent points out, the administration’s main defense—that only the Comptroller General can sue to remedy such violations—contradicts the plain language and entire background of the Act. It's hard to see any possible justification for the Court's action, which not only seems wrong on the merits but condoned the administration’s bad faith tactics. Worst of all, this supposedly interim ruling effectively mooted the case by allowing the administration to unilaterally cancel billions of dollars appropriated by Congress.
I think the MAGA Six have decided to be as obtuse and vague as possible in order to continue giving the Trump regime room to usher in the white Christian nationalism they all crave.
Judeo-Christian nationalism, to be more precise, though I suppose the "Judeo" part is implied since conservative Christians tend to focus on the Old Testament and everything in the New Testament except the Gospels.
In the famous afterword to _Whigs and Hunters_, the radical historian E. P. Thompson defended the rule of law as an "unqualified human good." (The reference and a sympathetic discussion are given in Cole (2001) https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1401&context=facpub )
Thompson's related arguments, which I accept, are (1) that the law, although a tool of the ruling class, is not only superstructure and not only a tool of the ruling class; (2) that, to retain its legitimating function, the law also from time to time has to be just and has to restrain the otherwise arbitrary power of the ruling class.
Meanwhile -- seeing the arc from the Patriot Act through "stay-at-home" orders to Trump (2024) to the regime's current war crimes in the Caribbean and abrogation of constitutional rights in the "Homeland", mostly licensed by the courts -- I reluctantly conclude that the ruling class is winding up the rule of law and that the process is accelerating. The orders have come down from on high, on a need-to-know basis, which includes the chief justice. Thus, the Supreme Court's majority, unfortunately, does not care that it is burning up its own credibility and the legitimizing function of the rule of law as a star burns through hydrogen, next helium, and finally heavier elements on its way to nova and supernova.
Perhaps the ruling class feels too threatened by even the few remaining restraints. Perhaps its greed has got the better of its judgment. Or perhaps it has rationally decided that the productive phase of capitalism is over (not least, it enabled too many social rights) and the looting phase is in full bloom, what no amount of legitimation methods can hide. Thus, consent, which requires some adherence to the rule of law, is being replaced by fear created by shock-and-awe brought home.
"The illusion of freedom will continue as long as it’s profitable to continue the illusion. At the point where the illusion becomes too expensive to maintain, they will just take down the scenery, they will pull back the curtains, they will move the tables and chairs out of the way and you will see the brick wall at the back of the theater.” --Frank Zappa
We live in dangerous times.
No. She is inverting how things are supposed to work. This is a nonsense answer.