Brian Christopher Jones*
Another turbulent Supreme Court term has left liberals pleased and conservatives disenchanted; exactly the opposite of last year’s conclusion, when liberals were gloomy and conservatives elated. And while the Court is certainly no stranger to controversy, at this point in the Roberts Era, something is different. The difference appears not through the divisiveness of the Court’s docket, which has remained consistent throughout the years, but in the way the American public, including journalists and others, now thinks and speaks about the institution. As its political nature becomes more easily discerned—both because of the issues it is deciding and the language used in the Court’s decisions—reverence to the institution, its Justices, and more importantly, its decisions, appears to be increasingly scarce.
Key to this new assessment is a widespread, increasing criticism; the institution and its members are being disparaged by a larger and more sophisticated audience than ever before. 1 Given both Republican and Democratic discontent, frustration with the Court may now have reached a boiling point. 2 And if you think liberals are overwhelmingly positive about the Court’s latest term merely because of the health care 3 and gay marriage 4 decisions, think again. 5 Such sentiments could be shrugged off as the whims of a partisan electorate, if not for the increased sophistication of the Court’s critics. Recent disparagement has rivaled what other branches have dealt with throughout the years, especially Congress. Yet, Congress need not worry about its primary roles: most of them (and the most important of all—legislating) are explicitly enshrined in the Constitution’s text, 6 and any contestation of these powers in the near future appears highly unlikely. In fact, in the face of relentless adversity, Congress has been a resilient institution. 7
However, the Court resides on shakier ground: since its powers of constitutional review are judicially rather than constitutionally constructed, 8 if the Court loses enough legitimacy such powers could be modified, perhaps significantly. In fact no formal amendment to the Constitution is required in order to change the nature of Supreme Court constitutional review. While some may believe that judicial supremacy of constitutional interpretative authority has been the long-established norm throughout American history, this view is manifestly incorrect; such “authority is not fixed” and “has shifted over time.” 9 Indeed, “[j]udicial authority can be successfully challenged,” 10 and this is especially true from a presidential perspective. 11 Given the animosity citizens from all political stripes have had towards the institution in recent years, an increase in popular constitutionalism or an enhanced form of departmentalism—including direct challenges from the President or Congress—could thus significantly reduce the Court’s role in American democracy. 12 Alternatively, lower federal courts or state courts may become more hostile to Supreme Court precedent, carving out their own constitutional paths that run contrary to Supreme Court interpretation. 13
The lack of explicitly provided constitutional review is no small matter. In other countries powers of constitutional review for high courts or constitutional courts are clearly expressed. 14 The US Constitution fails in this regard; 15 hence the need for the judiciary to establish this power in Marbury v. Madison. 16 Nevertheless, if the Court continues to inject itself into the political process (adjudicating the most contentious political issues), fail to protect minorities, and expand both unchecked governmental power and corporate speech rights, 17 hostility towards the institution will only increase. Without question, the Court should indeed worry about its constitutional future.
I. Off the Hook?
While disparagement of the institution is more widespread, the Court has often received unequal and less severe treatment than the other branches, notably Congress, regarding similar issues. An interesting example can be found in reactions to the productivity of the two branches. Just as it is Congress’s job to pass laws, it is the Court’s job to maintain the uniformity of federal law, which it does by issuing decisions. But the difference in public reaction to the decreasing productivity of the two branches is striking. For instance, near the end of the conspicuously unproductive 112th Congress, The Week put together a list of the most insulting media labels for the governing body, which included: “the most worthless, incompetent, do-nothing gathering of lawmakers in the nation’s history” (The LA Times); 18 “took incompetence to a higher level” (The Daily Beast); 19 “clowns” (The Washington Times); 20 and “least effective and most disliked” (Business Insider). 21 Unsurprisingly, the 113th Congress received similar condemnation, receiving labels such as “worst Congress ever” (The Week); 22 “[t]errible” (The Huffington Post); 23 and “set a standard for inertia” (U.S. News and World Report). 24 While depictions such as these are relatively common for the lawmaking body, the Court is not—or at least was not—attuned to such disparagement.
Beginning in the late 1980s, the Court saw a decline in the cases on the plenary docket and in the merits opinions it delivered, a trend which continued into recent years. 25 Yet little hateful or extreme language about the institution emerged. And for those who did criticize the Court, the language was more genteel, as opposed to intolerable of the institution. A 2009 New York Times article used the phrases “not operating at peak capacity” and “not an active enough participant in a dialogue with the lower courts.” 26 A 2013 Washington Post piece even described the Court as “busy looking for cases—but finding fewer than usual.” 27 Those phrases are a far cry from the demonstrative “Congress is useless” rhetoric seen above, most of which came from reputable news sources.
Even the law review audience, at times the institution’s harshest critics, has not condemned the Court too severely for its depleted docket. Kenneth Star provided the bitterest words for the Court in 2006, remarking that they do “not even pretend to maintain the uniformity of federal law,” 28 and that “the facts show beyond the slightest doubt that the Court is willing to allow conflicts in federal law to exist—and, even worse, to persist.” 29 Ultimately, he calls the Court’s docket a “scarce, indeed precious national resource,” 30 and suggests that it may be time for SCOTUS to “put its shoulder to the wheel and work harder.” 31 Recognizing Starr’s point about a lack of uniformity, in 2012, Owens and Simon wrote that “legal ambiguity may be rampant.” 32 They further note that a depleted docket could leave the institution “[o]ut of [t]ouch” 33 or perhaps even “[d]iminish the Court’s [l]egitimacy,” 34 remarking that “[f]ailure by the Court to send clearer signals could have damaging long-term consequences for the Supreme Court as an institution.” 35 Yet again, while these words are indeed critical, they are not altogether severe or extreme; if anything, such phrases sound thoughtful and inquisitive.
However all that may be changing.
II. External Disparagement: Changing Times
After the 2014 session ended, many people (including celebrities, politicians, journalists, etc.) used unabashedly strong language towards for the Court. Seth Rogen publicly called them “a**holes,” 36 Elizabeth Warren said they were heading in “a very scary direction,” 37 and a sitting federal judge proclaimed it is time for the Court to “stfu” (shut the f**k up). 38 Given the lack of televised proceedings, some late night comedy news shows found innovative ways to cover the Court. John Oliver used dogs to represent different Justices, 39 while Rachel Maddow employed hand puppets. 40 Justice Steven Breyer even concernedly mused at the American Law Institute that the Justices were being referred to as “junior varsity politicians,” 41 and prominent New York Times columnist Linda Greenhouse insightfully remarked “that instead of blaming our politics for giving us the court we have, we should place on the court at least some of the blame for our politics.” 42 She’s right. But this chorus of discontent predominantly came from the left.
Given the monumental health care and same-sex marriage decisions, the end of the 2015 session was as replete with rebukes, this time from the right. Republican politicians thoroughly trashed the Court. Bobby Jindal mused about getting rid of the Court, 43 while Mike Huckabee declared that the Court “unwr[o]te the laws of nature . . . .” 44 Governor Scott Walker suggested passing a constitutional amendment to let states decide the definition of marriage, 45 and, not to be outdone, Senator Ted Cruz proposed an amendment for SCOTUS retention elections. 46 Although much of this political theatre was anticipated (at least in regard to the same-sex marriage decision), should one of these presidential contenders be voted into the White House, SCOTUS’s constitutional interpretative authority could certainly be challenged, as it was by Reagan in the 1980s. 47
What was unforeseen was the wider and deeper investigation—which seems to have only just begun—focusing on the Court’s proper role in American democracy. The New York Times held a forum asking “Is the Supreme Court Too Powerful?” 48 Some of the writers answered affirmatively to that question. 49 SCOTUSblog held a similar forum, 50 and a couple of writers made strong cases against the processes of change brought about by the Obergefell v. Hodges 51 ruling. 52 Even prominent academic blogs like I-CONnect (the International Journal of Constitutional Law’s blog) have published material that questions whether the ruling was “unconstitutional” change. 53
High-court judges within the American judiciary have also criticized the Obergefell decision. A Louisiana Supreme Court justice called it “horrific,” 54 labelling it “a super-legislative imposition,” 55 and a fellow Louisiana Supreme Court justice noted that the “definition [of marriage] cannot be changed by legalisms.” 56 This all happened after the end of the most recent term. Yet, a few months before the Obergefell decision, in a bold and at times meandering 148-page decision the Alabama Supreme Court publicly questioned whether the doctrine of federal supremacy should remain part of the American Constitution. 57 Thus merely over the past few years a range of citizens have been thinking and speaking about the Court—and its place within American society—in remarkably different terms than previously.
III. Internal Disparagement: The Court’s Own Denunciations
But perhaps some of the harshest rhetoric—and analysis regarding the institution’s proper role in American democracy—has come from the Justices themselves. This was abundantly evident in the latest term. Justice Antonin Scalia begins his King v. Burwell 58 dissent by calling the majority’s opinion “absurd” 59 and “indefensible.” 60 He goes on to dramatically proclaim, “Words no longer have meaning,” 61 and classifies the majority’s decision as “unheard of,” 62 “jiggery-pokery,” 63 “pure applesauce,” 64 and “self-defeating.” 65 Scalia ends his dissent with noticeably ominous language, remarking that the two Affordable Care Act cases, King v. Burwell and NFIB v. Sebelius, 66 “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.” 67 While these decisions did not necessarily do this, the formal acknowledgement in Scalia’s dissent certainly does so. And although this line did not get as much play in the media as the Justice’s other decadent language, it casts a gloomy shadow over the Court, acknowledging it as an overtly political institution.
The Obergefell decision brought forth more disparaging rhetoric amongst the Justices. In his dissent, Chief Justice John Roberts prominently noted that the decision was “an act of will, not of legal judgment,” 68 and boldly asked of his colleagues, “[j]ust who do we think we are?” 69 In relation to one section of the majority’s decision, Roberts notes, “At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.” 70 In a separate dissent, Scalia calls the opinion a “threat to American democracy,” 71 and a “naked judicial claim to legislative—indeed, super-legislative—power.” 72 Justice Clarence Thomas is none softer, stating that the decision is a “distortion of our Constitution,” 73 and at odds “with the principles upon which our Nation was built.” 74 Finally, Justice Samuel Alito writes that the decision “is far beyond the outer reaches of this Court’s authority,” 75 claiming that it “usurps the constitutional right of the people,” 76 and will “have a fundamental effect on this Court and its ability to uphold the rule of law.” 77 All of these accusations are undeniably serious and constitutionally significant, especially as regards the proper role of the judiciary in constitutional review and, ultimately, in American democracy.
Well known for being the most sarcastic Justice, 78 such bold vitriol is expected from Scalia. 79 But such sweeping and divisive rhetoric is not accustomed to the other Justices. Given the increasing disparagement of the institution, these attacks will receive more attention than ever. This compromises the Court on two levels. First, the flamboyant attacks Scalia employs in his King dissent, in addition to the many he has employed throughout the years, makes the Court’s work look insignificant or trivial. 80 Moreover, the harshness of the language used in the Obergefell dissents taints the Court’s authentic constitutional discourse, making it appear abundantly and overtly political. This type of internal disparagement will only deepen external ridicule of the institution.
Of course, the Court has been criticized and put under significant pressure during earlier periods of its existence. The Reconstruction Era, FDR’s New Deal Era (including his infamous “court packing” plan), and the endless condemnation of the Warren Court during the Civil Rights Movement are three such examples. The institution survived these episodes, however, and it could be argued that the power of the Court has only increased since these tumultuous periods. 81 Nevertheless, by intervening into the political process in such a distinct and resolute manner during recent years, the Court has unquestionably brought this increased disparagement upon itself. After all, the amplified vilification and questioning of the institution’s reasoning and proper democratic role comes not only from the media and the other sources listed above, but through the Court’s own decisions. Decisions that some—both within and outside the judiciary—are taking less seriously.
∗ PhD, Lecturer in Public Law, Department of Law, Liverpool Hope University. The author can be reached at: firstname.lastname@example.org. The author wishes to thank Cameron Marston, Bryce Loken, and the other members of the Wisconsin Law Review staff for their professionalism and assistance throughout the publication process. Any errors are the author’s alone.
**Cite as: Brian Christopher Jones, Disparaging the Supreme Court: Is SCOTUS in Serious Trouble?, 2015 Wis. L. Rev. Forward 53, http://wisconsinlawreview.org/disparaging-the-supreme-court-is-scotus-in-serious-trouble/.