"The Supreme Court," the old saw goes, "is not higher because it is right. It is right solely because it is higher."
The idea behind this aphorism is simple: while practically speaking we must have some actor with buck-stops-here final authority to interpret the law, that the nine justices of the Supreme Court occupy that position in no way suggests that they have some special insight or knowledge about the law that goes beyond that held by the average J.D.-holding-Joe. It is mostly a matter of happenstance that the sputtering machine of our constitutional order happened to spit out these nine in particular. There are any number of lawyers and legal professionals who could do as well or better at the task.
When Ilya Shapiro infamously said that any nomination short of Sri Srinivasan to the Supreme Court would necessarily be one given to a "lesser Black woman" he was -- beyond the obvious racism -- making this mistake. The idea that there is some unified ordinal ranking we can give of all lawyers and judges, such that we can say with confidence this person is the "best" candidate to be a Supreme Court Justice, is fanciful. The idea that if such a ranking were possible, these nine individuals would rank #1-9 is even more facile.
I thought about this when reading an interview Justice Alito recently did with the Wall Street Journal, which broadly tackled the question of the Supreme Court's declining legitimacy, framed around the cavalcade of unpopular right-wing rulings that have been de rigueur for the Supreme Court over the past few years. In his inimitable style -- nobody can match his combination of sneer and self-pity -- Justice Alito laid blame for the Supreme Court's legitimacy crisis on everybody but him and his faction. It's the media, it's the Democrats, it's the legal community writ large. It has nothing to do with the content of the decisions. It's a wide-ranging conspiracy depriving them of their just public adulation.
At one level, this is little more than Alito reflecting the ideology of his tribe. Nothing unites the contemporary right more than the complete abdication of personal responsibility. It's always someone else's fault. They are but helpless atoms, involuntarily reacting to the jostlings of the universe.
But I particularly want to zero in on his complaint that the broader community is not coming to the Court's defense:
"And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense." Instead, "if anything, they've participated to some degree in these attacks."
This discussion, again, is framed around the Court issuing repeated unpopular decisions. Certainly, it is the case that sometimes judges are obligated to hand down rulings they know will be unpopular. An unpopular ruling is not, on its own, a marker of illegitimacy. That said, in my Sadomasochistic Judging article I observed that it's too easy for judges to swing out to the other extreme, and begin viewing their unpopularity as a marker of legitimacy -- they know they're right by how much they're hated. If good judges sometimes have to do unpopular things, then a judge who's always doing unpopular things must be a great judge! Who can argue with that logic?
Nonetheless, I don't disagree that among the duties of the bar is, where appropriate, to remind the public that judges sometimes have to issue decisions that they know will be unpopular but which are legally correct. And, as Justice Alito alludes to, historically, the bar has fulfilled that obligation and offered those explanations.
Which might be taken to suggest that, if these defenses are not on offer today, it's because the bar today does not see what's going on at the Supreme Court as unfair attacks stemming from a few unpopular rulings.
Indeed, it's noticeable that the criticism of the behavior of the judiciary isn't just stemming from the highest-profile, hot-button issues. There are increasingly dire complaints from specialists in the more "boring" sectors of law -- administrative law, standing doctrine, remedies -- that things are getting out of control, that the Supreme Court (and some lower court wannabes) are blowing past longstanding doctrinal principles in service of results-oriented judging in service of right-wing extremism. The era of conservative legal formalism is over. The stampede of cases come from every quarter and every issue -- guns, abortion, voting rights, religious freedom, gerrymandering, racism, environmental protection. And what unifies the conservative faction's voting pattern in those cases isn't textualism, or originalism, or precedent, or prudence, or deference to democracy, or professional consensus. The best -- not perfect, but best -- way to predict what the Court will do in nearly any legal arena is to ask "what do Republicans want."
The legal community, as Justice Alito says, may be obligated to defend the Court from unfair attacks. It is under no similar obligation to defend the Court from attacks it thinks are entirely fair. The most consilient explanation for why the bar is withholding defenses it has historically proffered in circumstances of mere political unpopularity is that it does not identify the problem as political unpopularity; it has judged that the Court really is deviating increasingly sharply from basic rule of law principles in service of sloppy, results-oriented right-wing caprice.
A modest Court would take this reaction from the bar as a warning. Recognizing that it does not have a monopoly on, or even a superior vantage towards, legal truth, it would take very seriously indications that its peers in the legal community think it is going astray. By design, the Court has few formal guardrails that prevent it from simply becoming a blunt instrument of factional caprice. The collective feedback of the legal community is an informal mechanism for assessing the risk. When the bar is generally saying "look, we understand people might disagree with this decision, but sometimes unpopular decisions are part of a functioning legal system", that's a sign things are healthy. When the bar no longer feels capable of credibly making that apologia, that's a sign of rot. And in that register -- the register of professional assessment -- the Court cannot lay claim to special prerogatives because it is "higher". The Court is not necessarily right just because it is higher, and should take a long and deep pause if its professional peers are increasingly emphatic about how wrong it is.
But this Court is not modest. If the bar no longer has confidence in judicial legitimacy, then it's the bar children who are wrong.
One can, of course, explain all of this away by deciding that the entirety of the federal bar has suddenly and en masse decided to abandon its historic commitment to American legal institutions in favor of blinkered ideological partisanship. But every bit of political theory and common sense we possess suggests that we're seeing the natural results of six individuals with life tenure and virtually nothing in the way of formal checks on their authority becoming power-drunk.
It is among the prerogatives of that drunken, unfettered power that Justice Alito does not need to be "popular" to continue to impose his personal will onto society. Formally speaking, the bar can scream as loud as it wants that what he's doing is not normal, and is not compatible with the professional consensus on what the law is. Indeed, at one level, I think that -- protestations notwithstanding -- the lawlessness is the point. Judges are specialists masquerading as generalists; there might be a few issues where they really do know more than the rest of us, but most legal cases turn on doctrines that judges know virtually nothing about until the minute they open the first brief. But if one holds the legal community in the sort of open contempt that Justice Alito clearly does, there is a sort of thrill in defying of them -- of making it painfully clear that you do not care and it does not matter what the legal community say the rules are in a given case. L'etat, c'est moi. I decide what the law is.
It is the hallmark of an abuser, though, that they simultaneously thrill in degrading their victims and demand their victims consent to the abuse. For all that he enjoys gleefully soaring beyond the confines of legal professionalism, Justice Alito also insists that the legal profession owes him supplication. It's not enough to obey if we don't also recognize that he's right to do what he does to us. In this way, the aforementioned "thrill" is something of a lie Alito tells to himself. He does care and it does matter that the legal community thinks that he's a hack. I'm not saying it'd be better if he truly didn't care. But he does care. He's livid about it.
What Justice Alito wants is a contradiction -- he wants to bludgeon the legal community into freely accepting his preeminence. It's not enough for them to recognize him as higher, they have to recognize that he's right, and the beatings will continue until the morale improves. But this sort of "consent" -- recognition that the Court is right in what it says -- is not one the Court is entitled merely because it is "higher". The people -- whether the people of the United States as a whole or the legal community in particular -- may have to obey the Supreme Court. We do not have to like the Supreme Court. And if it is to be viewed as more than the capricious whims of six radical in robes, that is a public perception it must earn; it is not an entitlement.