In an interview last month, Justice Samuel Alito complained about excessive criticism of the Supreme Court. To him, these criticisms have not identified discrete problems to be solved but rather represent bad-faith efforts by critics to do nothing more than give the public a “reason to question our legitimacy.”
The not-so-subtle implication of what has become a regular talking point for conservatives is that the court isn’t — and shouldn’t be — responsive to public criticism. And if that’s true, it must follow that public criticism doesn’t serve a legitimate purpose, especially if it is unlikely to spur meaningful reform from Congress.
Yet this attempt to delegitimize public criticism fails at its inception. Even if reform from Congress is not imminent, we ought not drop the focus on another potential vehicle for reforms — the court itself.
There are both historical and recent examples of how the court, in response to mounting public pressure and criticism, has changed its ways, examples that underscore the value and opportunities provided by continued public pushback today.
Perhaps the most famous example of the court’s responding to public criticism came in 1937. After the 1936 election, in which President Franklin Roosevelt ran as much against the court — which was blocking economic measures meant to respond to the dire conditions of the Depression — as against Gov. Alf Landon of Kansas, Justice Owen Roberts made “the switch in time that saved nine,” a shift that historians debate was either because of Roosevelt’s proposal to add six seats to the court or, more generally, in response to the broader atmospherics of the president’s re-election. Either way, the court’s shift was precipitated by substantial public backlash against its recent behavior, and it opened the door to an era of greater judicial deference to economic regulation and greater judicial protection of civil rights.
To similar effect (albeit in a different direction), the Supreme Court of the mid-1970s responded to public criticism on the issue of the death penalty. When the justices effectively imposed a nationwide moratorium on capital punishment in 1972, the political backlash was extraordinary — at both the state and federal levels. In exchange for adopting a series of procedures designed to make imposition of the death penalty less arbitrary (at least in appearance), dozens of states and Congress aggressively pushed the court to reauthorize capital punishment. On July 2, 1976, the court acquiesced.
In the past 18 months, we’ve seen a similar — if subtler — shift in the court’s behavior that again closely correlates with public criticism and pushback. In this case, it has been related to how the justices issue unsigned and (usually) unexplained orders concerning applications for emergency relief, on what Will Baude, a University of Chicago law professor, first called “the shadow docket.”
Starting in 2017, there was a great shift in how the conservative majority used unsigned, unexplained orders, especially in the context of applications for emergency relief (to freeze or unfreeze lower-court rulings while a case works its way through the courts). Far more than ever before, the justices started using these orders in ways that had nationwide implications — allowing, for example, President Donald Trump to carry out a series of immigration policies that lower courts had struck down (and no court would ever uphold) and blocking a series of Covid-mitigation measures in blue states on novel religious liberty grounds.
By contrast, the court showed nowhere near the same appetite to intervene to protect President Biden’s policies or to block controversial laws in red states — like Texas’ six-week abortion ban, which the court, in September 2021, allowed to go into effect, nearly 10 months before it overruled Roe v. Wade. As Justice Elena Kagan charged in her short dissent on the court’s refusal to intervene in the Texas case, the conservative majority’s behavior on the shadow docket had become increasingly “unreasoned, inconsistent and impossible to defend.”
But then, something strange happened: In a little-noticed October 2021 ruling refusing to block Maine’s Covid vaccine mandate for health care workers, Justice Amy Coney Barrett wrote a cryptic concurrence (which Justice Brett Kavanaugh joined) suggesting that just because an applicant had made a case for emergency relief from the court didn’t mean the justices had to intervene. Rather, the court should use its discretion, she argued, much as it does in deciding the cases to which it will give full consideration. Justice Barrett didn’t say what would guide that discretion, but her brief concurrence was a turning point. To underscore that, in spring 2022, in an emergency relief case involving environmental regulation, Chief Justice John Roberts strikingly joined a dissent by Justice Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, emphasizing concerns about the procedural shortcuts the other conservative justices had been taking.
Since then, the court has intervened far less often and in ways that have looked far less partisan even when it has granted emergency relief.
Consider the court’s decision last month to preserve nationwide access to the abortion drug mifepristone — a ruling from which only Justices Clarence Thomas and Alito publicly dissented. What changed some of the conservative justices’ minds? We’ll never know for sure, but the biggest thing that happened between the rulings in the Texas abortion case on Sept. 1, 2021, and in the Maine vaccine case on Oct. 29, 2021, was the tremendous public reaction to the former. The Texas ruling brought the shadow docket into the mainstream — and the mainstream media, as an article published by the Chicago Policy Review noted. The consequences of the court’s shadow docket behavior became highly visible for nonexperts to see. And once the shadow docket went mainstream, public backlash followed.
We will all disagree as to whether public criticism of the court in specific contexts is fair. But what can’t be denied is that public pressure on the court has been, both historically and recently, a meaningful check on the institution’s excesses — and an essential means by which the public is able to hold unelected and otherwise unaccountable judges and justices to account.
In the case of the shadow docket, it has led the court to tamp down its aggressiveness and try to provide more explanations for its less justified interventions. In the hotly debated case of ethics reform going on now, all nine justices have already publicly committed to following at least broad ethical norms. The court can go further, and it can (and should) adopt formal internal mechanisms to enforce whatever rules the justices agree to bind themselves to — much in the way that internal inspectors general hold both the executive and legislative branches to account.
The point is not that any one set of reforms is a magic bullet. Rather, it is that a court whose legitimacy depends at least to some degree on public support is not, should not be and never has been immune to criticism and pressure from the same public.
Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the “One First” weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
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