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The Right’s Stupefying Defense of the Supreme Court

Conservatives are up in arms that the high court has become embroiled in a legitimacy crisis.

Cruz and Lee during a Senate Judiciary Committee meeting
Win McNamee/Getty Images
Texas Senator Ted Cruz confers with Utah Senator Mike Lee.

Investigations into Justice Clarence Thomas’s extracurricular scandals—namely, that he and his wife get favorable financial treatment from conservative friends and benefactors—are sparking louder discussions among Democrats who want to impose ethics reform on the Supreme Court. The steady drumbeat of reports tying Thomas to other eye-raising gifts has spawned a different discussion among conservatives as well: namely, furious defenses of Thomas from Republican senators and conservative commentators who claim that scrutiny of the longtime conservative jurist is imperiling the American constitutional order.

“The Left’s first objective: Delegitimize the Supreme Court,” Texas Senator Ted Cruz recently claimed on Twitter. “The Left’s second objective: Attack Justice Clarence Thomas personally because they hate him because he dares to be a conservative. It’s condescending and completely racist.” Utah Senator Mike Lee and some of his Republican Senate colleagues signed a letter on Monday denouncing what they described as a “manufactured ‘ethics crisis’” that Democrats are orchestrating because the high court is “no longer acting as a super-legislature to implement progressive policies.”

National Review, a prominent magazine among the conservative legal elite, cast the fight in even broader terms. “This is the opening move in a longer war against the legitimacy of the Supreme Court as a whole,” the magazine’s editors claimed. “Activists have concluded that since they lack ideological control over the Court in the short term, it must be delegitimized in anticipation of an attempt to unilaterally expand it or otherwise neuter it when Democrats next gain significant majorities in both houses of Congress during a Democratic administration.”

I think it would be helpful to clear the air on how we reached this point. It can be simultaneously true that the Supreme Court’s ethical standards could be improved in general terms and that liberals independently think the court, as currently constructed, is a few steps short of legitimate. Conflating these issues is more likely to aggravate both of them than to help address either of them. More than anything else, however, it is beyond audacious for conservatives to suddenly care about the court’s legitimacy only now that they have a supermajority of justices on it.

Lee’s “super-legislature” charge might make sense from his point of view, but it can only be read with a sense of utter confusion and bewilderment from the left. Liberals have not truly had a five-justice majority on the Supreme Court in my lifetime or even the Utah senator’s lifetime. Democratic presidents did not appoint a single justice between Thurgood Marshall in 1967 and Ruth Bader Ginsburg in 1993. Between Lee’s birth in 1971 and his junior year of college, when Ginsburg was confirmed, Republican presidents appointed eight consecutive justices to the Supreme Court. It’s not the left’s fault that most of those picks turned out to be less ideologically pure than some elements of the conservative legal movement had hoped.

The moderates who ended up on the high court, to the occasional chagrin of conservatives who dream of radical change being handed down by a more doctrinaire majority, helped mask a deeper rightward shift on the court from liberals’ point of view. The Rehnquist court approved some limits on abortion without directly threatening Roe v. Wade. It trended against criminal defendants while also abolishing the death penalty for juvenile defendants and people with intellectual disabilities. The Roberts court recognized an individual right to bear arms in the Second Amendment and gutted the Voting Rights Act of 1965 but also refused to strike down the Affordable Care Act twice and recognized the right to marriage for same-sex couples.

With median justices like Sandra Day O’Connor and Anthony Kennedy casting the deciding vote, it was easier for liberals to regard the court as a place where nothing was preordained and either side could feasibly win. That is no longer the case. With six conservative justices in place and only Chief Justice John Roberts showing any interest in going slowly on some issues, there is no reason for liberals to think that any of their interests will be vindicated by this court. Reproductive rights, church-state separation, a robust federal regulatory system, meaningful constraints on gun ownership, and policies to fight entrenched racial inequalities are either already imperiled or imminently on the chopping block.

It is not so much that liberals are “trying to delegitimize” the court, as if this were some disingenuous plot. A growing number of them simply no longer regard the court as legitimate and are saying that out loud in public. All American institutions ultimately derive their authority from the consent of the governed. Supreme Court justices are not elected, and they are not a democratic institution, but they are supposed to be chosen by people who reflect that consent. Thomas, Roberts, and Justice Samuel Alito were appointed by presidents who legitimately won their elections. Then a bigoted and authoritarian president who received three million fewer votes than his opponent got to appoint three justices to lifetime seats on the nation’s highest court and remake American constitutional law.

Justice Neil Gorsuch was confirmed to a seat held open by Senate Republicans for more than a year for purely ideological reasons. Justice Brett Kavanaugh claimed, angrily and incongruously, that sexual misconduct allegations against him during his confirmation hearing were “revenge on behalf of the Clintons.” Justice Amy Coney Barrett appeared on the White House balcony with Donald Trump shortly after her confirmation vote on the eve of a presidential election where Trump lost by roughly seven million votes. Those three justices then voted to overturn Roe v. Wade as soon as they feasibly could. The conservative legal movement won. It reshaped the Supreme Court in its own image—and it’s an image that liberals decidedly do not like. Many of them no longer look at the court and see nine robed justices. They now see Donald Trump.

It might be too much to expect conservatives to acknowledge the uneasy plinth upon which they’ve built this judicial supermajority. But they might have a little more sympathy with the place in which liberals now find themselves. After all, the cauldron in which the modern conservative legal movement forged itself was the heady liberal days of the Warren court. In those days, the Supreme Court consciously worked to smash racial segregation, expand free speech rights and protections for personal liberty, reform American elections at all levels under the “one person, one vote” principle, bolster protections of criminal defendants, and reduce religious sectarianism in public institutions.

Conservatives are also no stranger to uncovering a justice’s ethical shortcomings. In the summer of 1968, Lyndon B. Johnson nominated Justice Abe Fortas to replace the retiring Earl Warren as chief justice. His nomination fell apart after considerable pushback from Southern senators, some of which was tinged with antisemitism, and ethics concerns about $15,000 in speaking fees he had taken from business interests during a lecture series at American University. Johnson was unable to choose a replacement before the election of Richard Nixon, who ultimately tapped Warren Burger as the next chief justice.

The following year, Fortas resigned from the court after Life magazine reported about the justice’s friendship with Louis Wolfson, an ethically dubious financier who invented the leveraged buyout and who had been convicted of various financial crimes. Fortas had received $20,000 from Wolfson’s family foundation, which he later returned, as a consulting fee. It was the first and only time thus far that a Supreme Court justice resigned under such pressure.

“Fortas’s departure, coupled with the scheduled retirement of Chief Justice Earl Warren, will mean two fewer votes for the activist policies that developed during the Warren Court’s 16 years,” The Washington Post reported at the time. “It is a political windfall for Nixon, who vowed during the campaign to appoint ‘strict constitutionalist’ judges of a more law-and-order philosophy.” The windfall to which they referred was no accident: It later emerged that Attorney General John Mitchell and the Nixon administration had helped leak damaging information to Life in an effort to push Fortas out.

If conservatives are frustrated that liberals no longer view the court and its rulings as legitimate, they should at least appreciate the flattery of imitation. After all, for much of the court’s recent history, it was conservative politicians and commentators who denounced the legitimacy of the court’s rulings. Liberal judges and justices interpreting the Constitution in good faith were derided as “judicial activists” for, well, ruling in ways that conservatives don’t like. National Review’s editors don’t have to take my word for it: They can consult the impressive recurring daily feature on their website titled “This Day in Liberal Judicial Activism.”

Even some of the leading conservative justices have pointedly questioned the legitimacy of their colleagues’ work from time to time. By this I don’t mean the usual ebb and flow of dissents; sometimes judges think they’re right and their colleagues are wrong, but in a spirit of good faith. Justice Antonin Scalia, one of the movement’s leading lights, was famous for denouncing his colleagues’ work in vivid and personal terms.

In King v. Burwell, the court’s second decision that upheld the Affordable Care Act, Scalia wrote that the ruling “will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.” In Glossip v. Gross, where Justice Stephen Breyer wrote a dissent urging the court to reconsider the constitutionality of capital punishment, Scalia wrote a concurring opinion to claim that his longtime associate “does not just reject the death penalty, he rejects the Enlightenment.”

Perhaps his most venomous dissent came in Obergefell v. Hodges in 2015, when the Supreme Court struck down same-sex marriage bans nationwide. Scalia wrote to describe what he apparently saw as “this court’s threat to American democracy” for overriding the will of the people in some states to deny marriage rights to gay and lesbian couples. He said the ruling was “lacking even a thin veneer of law.”

From there, he castigated his colleagues in direct and personal terms. “Four of the nine are natives of New York City,” he noted, claiming the justices were unrepresentative of the nation. “Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).” I can only imagine the perplexed look on the faces of Anthony Kennedy, who is from Sacramento, and Stephen Breyer, who is from San Francisco, when they learned that they weren’t real Westerners according to someone from New Jersey.

His frustration also veered into the unnecessarily caustic: Referring to Kennedy’s florid writing style, Scalia claimed that the court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He ultimately concluded with a biting flourish: “The stuff contained in today’s opinion has to diminish this court’s reputation for clear thinking and sober analysis.” Liberals can only aspire to match Antonin Scalia’s rhetorical energy when denouncing the court’s rulings as illegitimate.

Scalia’s focus on the court’s illegitimacy in these dissents is part of the conservative legal movement’s worldview, not a departure from it. Proponents of originalism and textualism often describe those schools of jurisprudence as the one true way to interpret the Constitution or to read federal laws, respectively—a rhetorical trick that renders all alternative approaches illicit by default. Now that the Supreme Court has a reliably conservative majority, this is less about a debate over judicial methodology and more about an assertion of power. Why are conservatives so surprised and outraged that liberals won’t accede to the prevailing judicial order? After all, they didn’t.