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Chief Justice of the Supreme Court John Roberts has been busy publicly defending the court lately, as has Justice Samuel Alito. Both seem keenly aware of the legitimacy crisis the court now faces, as is evidenced by the fact that public confidence in their institution is at an all time low particularly among Democrats and independents. These conservative justices are delusional to blame anyone but themselves and the Republican Party for the court's legitimacy crisis.
That most all judges insist on their neutral status, that they exist above the fray of politics, is somewhat understandable given that law schools practically indoctrinate students to believe that judges are little more than disinterested arbiters of the law. These claims were echoed by Chief Justice Roberts at his confirmation hearing when he compared judges to umpires, only there to call balls and strikes rather than to "make the rules." Even the liberal Justice Elana Kagan made similar comments recently, proclaiming that it is "when people see them [the courts] as extensions of the political process" that their legitimacy is threatened. However, the unarguable reality is that our courts have always been a rule-making institution, one that has been driven by partisanship since its inception.
As to the rule-making power of the courts, our common law legal system is purpose built to give judges the ability to make law. This is precisely why we read judicial opinions, to see what law the courts have crafted in the cases that came before them. There is simply no excuse for the members of the judiciary such as the chief justice of our Supreme Court to claim that judges are not meant to "make the rules" given this irrefutable fact. It is little wonder that the American people would lack confidence in those who would so blatantly lie to them about the basic structure of the judiciary.
Not only is the court a rule-making institution, it is and has always been an overly political one. Nowhere is the historical presence of partisanship in the courts more evident than when we look to the most impactful Supreme Court case in judicial history, Marbury v. Madison (1803). This case arose as a direct result of the Federalists packing the courts after suffering a major electoral defeat, a tactic they undertook precisely because they understood that there was political power in the courts that they could cling to in spite of the will of the people.
The last several years in particular have been rife with fresh examples that illustrate how well understood it is that the courts are political powerbrokers. For example, now Attorney General Merrick Garland never received a confirmation vote to the Supreme Court by a Republican controlled Senate after having been nominated by President Barack Obama in March of 2016, a full eight months before the next election. Senator Mitch McConnell, in explaining why he would not give Garland a vote, quipped that he wanted the American people to have a "voice" on the court's direction. In essence, Senator McConnell decided to make the court an overt "extension of the political process" in the very manner Justice Kagan warned undermines their legitimacy most.
Senator McConnell's hypocrisy on this issue is of course well understood when we look to how Justice Amy Coney Barrett came to the court. Barrett was confirmed by the Senate, again overseen by Senator McConnell, a scant eight days before an election that ultimately saw Republicans loose both said chamber and the presidency. McConnell knew his party was very likely headed to a sound defeat and decided to preemptively stack the court with an ideological purist before Democrats came into power.
The conservative members of the Supreme Court itself are far from blameless, as they've nakedly become little more than extensions of the Republican Party. The overturning of Roe, which existed as precedent for nearly half a century, is of course the most glaringly obvious example of this but others abound. From the destruction of the wall of separation between church and state, to their continued blessing of the Republican Party's assault against voting rights, this Court is on pace to be among the most ideologically extreme in our nation's history as it continually rules in ways that are at odds with the will of the American people. To then question why those same people do not have much in the way of confidence in the institution that acts in this way is nothing short of dumbfounding.
The next time we hear conservatives, particularly those on the high court, bemoaning the death of the court's legitimacy, perhaps we should remind them that they are the ones who killed it.
Nicholas Creel is an assistant professor of business law at Georgia College and State University.
The views expressed in this article are the writer's own.
