SCOTUS Watch: Members Realize They Are In Trouble

It's late Friday afternoon and there are no new orders or anything. But, by now, we know that we should not assume things will remain the same. Enough late Friday action. I'll post it though and edit if necessary.

Still, let's focus on multiple members of the Supreme Court (Barrett, who I refuse to label "Justice" given I find her appointment tainted, included) are out there defending their institution. The big news -- covered in the past -- is Justice Breyer promoting his overly positive view of judicial review, including on places like Colbert. Now, on some level, I appreciate him going out in the public to discuss his views. These people aren't just ivy tower above the fray sorts. They should engage with the public some more and appreciate some of their efforts.

The problem is with his message and failure to realize it is time to retire. One annoying moment was when Chris Wallace asked him about Garland not being given a hearing. Breyer started with some stupid joke that even he saw didn't go over well. Then, he said that was the "political" side -- as if it had nothing to do with him and the Court -- and if the people opposed it enough, they could change it. 

Not exactly realistic, and he is actively out there trying to sell that there is no reason to do so since the Court is doing its job, and strong opposition to it it a problem.  So, that's sorta bullshit, you know?  Breyer and probably others pine for a day when judicial nominations were bipartisan walks in the park.  So, Garland etc. looks bad.  But, they also don't actually want much change (though Breyer has said term limits seem okay and Colbert suggested only a "majority" opposed cameras), which will temper down any action to get any. 

The fact the members of the Court are at least somewhat worried or annoyed or something is suggested by the fact recently multiple members are out there responding. One red flag is that there is recent polling that suggests public support of the courts have significantly decreased.  Which is warranted given the Trump trio and all that is going on.  

For instance, Barrett is out there -- in a location named after Mitch McConnell -- trying to sell that they aren't all partisan hacks. As noted here, her (and others) attack on the media is bullshit.  If nothing else, you can try A LITTLE and avoid any connected to Mitch McConnell.  

But, as Mark Stern and others noted, each Trump nominee did not follow that rather simple rule.  Some have high bars of ethics, such as a judge not being involved in an ACS event, but there are basic rules of avoiding the appearance of impropriety here.  How about formal ethics rules for Supreme Court justices? I suppose would be basically self-enforcing (though disclosure rules could be included), but seems useful.

Justice Thomas joined the "we aren't all partisan hacks" brigade.  We have this simplistic appeal:

“I think the media makes it sound as though you are just always going right to your personal preference,” the justice lamented during a lecture at the University of Notre Dame. “So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician."

This is rather simplistic.  As is his comment that national leaders have “lost the capacity” to “not allow others to manipulate our institutions when we don’t get the outcomes that we like."  For instance, their abuse of the shadow docket, doing so selectively in ways that surely do come off as based on ideological factors, is an "outcome I don't like," but sometimes that is a problem.  The way the Trump picks were handled also would have been bad if a Democrat did that.  His framing is simplistic.

It is true that justices are not just politicians in robes.  There is some nuance here.  The truth is in the middle somewhere. Judicial nominations tend in some rough sense, all things being equal, to have some partisan ideological overlap.  And, more so in recent years.  And, judges aren't just automans here.  Moscow Mitch et. al. purposely worked out that certain types of judges got on the bench. It's a lie to pretend otherwise.  

(The honest answer is that personal beliefs factor in and that judicial interpretation will be influenced by them to some extent, especially given our judicial selection process. The judge's duty is to do the best they can. And, to avoid an appearance of impropriety.)  

I don't know how much change in recent years; think this article suggests a bit too much of a shift. Surely, the Warren Court did a lot.  There has been a change, including as a result of changing political winds -- there was more overlap in the past.  We could have a liberal Republican become a justice.  Something similar could be seen c. 1900 when Democrats and Republicans could put people who didn't respect racial equality and support libertarian economic stances.  

There is also the imbalance caused by the 2000 and 2016 elections.  The lower courts have been more flexible over the years.  But, the Supreme Court didn't have a Democratic appointed majority for over fifty years or a Democratic appointed Chief Justice (himself a conservative) since the Truman Administration.  That's going off the rails without the problems with the last three nominations.  

The public and some members of Congress realize something is wrong. They might talk about it somewhat simplistically.  What else is new?  Breyer, Barrett, and Thomas (and Alito in the past), however, aren't really showing themselves to be much better. Perhaps, humility is best here. 

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Note: I added a new website to the blogroll, Balls and Strikes, which aims to provide a progressive view of the courts.  

A major constitutional/legal dispute these days is religious liberty limits to Big V rules. Someone who is generally friendly to religious exemptions (probably too much) argues religious exemptions to vaccine mandates are problematic.  I agree, and to the extent we have had them, in recent years, there have been problems with their usage as well.

Finally, perhaps worthy of a separate entry or something, but the latest attempt to compromise on a federal voting law looks good. Manchin is for it.  Like his support of a filibustered background check years back that 90% or something of the public supported, will this actually come to anything?