To protect the supreme court’s legitimacy, a conservative justice should step down
In Planned Parenthood v Casey, a landmark 1992 decision, the US Supreme Court memorably stated that its "power ... resides in its legitimacy." When the people question the legitimacy of the court, they will cease to “accept the judiciary as appropriate to determine what the law of the nation means and explain what it requires”.
It appears that Judges Clarence Thomas and Amy Coney Barrett share these concerns. In separate statements earlier this month, both judges sought to reassure the public that, in the words of Coney Barrett, "this court is not made up of a bunch of partisan hackers." Thomas said the same, trying to convince his audience that judges "just always act according to their personal preferences".
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The judges' concern was the scathing criticism of the court's recent decision to keep a Texan law in effect, at least for the time being, that de facto turns ordinary citizens into bounty hunters empowered to sue anyone who does something or "helps." and "abets" an abortion for a woman after the sixth week of pregnancy. Texas law is inconsistent with the judgment of the Planned Parenthood Court, which recognized that “a woman's right to terminate her pregnancy before viability ... is a rule of law and an element of freedom that we are not entitled to can do without". Failure to do so, the court warned, would "deeply and unnecessarily damage the legitimacy of the court and the nation's commitment to the rule of law." But that is exactly what the court did by allowing the transparently unconstitutional law of Texas to prevail.
But far from recognizing or investigating their own role in contributing to the erosion of the court's legitimacy, the two judges turned to other districts to assign the guilt. It is the media, Thomas lamented, "destroying our institutions" by a judge who opposed the court's refusal to hear Trump's challenge to a Pennsylvania court ruling that extended the deadline for postal votes by three days. Thomas acknowledged that the amount of mail at stake did not have a material impact on the outcome of the Pennsylvania race; Even so, he was ready - in a breathtaking display of partiality or deafness - for the Supreme Court to tacitly support Trump's attack on the 2020 election result just weeks after the January 6 riot. And by now blaming the media for the court's self-inflicted wounds, Thomas is effectively repeating Trump's toxic rhetoric about "fake news". Who is the institution destroyer here?
Unfortunately, Judge Coney Barrett joined in with Thomas when he attacked the press. The media, she said, makes decisions like the Texas case "seemingly results-oriented." It's worth noting that the judiciary made its remarks at the McConnell Center at the University of Louisville in the presence of Senator Mitch McConnell, the center's namesake. It was, of course, McConnell who, following the death of Ruth Bader Ginsburg six weeks before the 2020 election, pushed through Coney Barrett's nomination, in transparent violation of the justification he had offered four years earlier to deny President Obama the right to name a judge to fill a court position that ultimately went to Neil Gorsuch. That McConnell's cynical manipulation of the rules was aimed at putting together a court that would lead to reliably conservative results seems to have lost Coney Barrett. In fact, it was her voice that made the difference in the Texas case. If Ginsburg had still been on the pitch, the decision would have been 5: 4 in the other direction. McConnell got the results he wanted.
If Coney Barrett was really interested in promoting the court's legitimacy, she might consider stepping down. Or rather, she and Gorsuch could agree to flip a coin to decide who should leave the court. If presidents cannot replace judges in an election year, confirmation from Coney Barrett is illegitimate; and if presidents are replaced, Gorsuch's endorsement must be illegitimate. You cannot have both - not if you believe that the composition of the court should be the product of a process of principle.
Coney Barrett seems to be purposely overlooking the fact that she has been elevated to a refined position through a battered process that spoils any decisions in which her voice is a crucial part. And just as we could hope that a person who through no fault of their own came into possession of an asset that was not rightfully theirs would return that item, Coney Barrett and Gorsuch could do the right thing for the nation by relying on it some of them should resign.
It is clear that this is not going to happen. Still, it would greatly strengthen the legitimacy of a court whose composition smells like illegality.
Lawrence Douglas is the author of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
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Associate Justice of the United States Supreme Court
Amy Coney Barrett
American attorney, judge, and academic
Associate Justice of the United States Supreme Court
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