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I saw someone last night making the fairly ludicrous claim that ProPublica’s muckraking exposés on Clarence Thomas and Sam Alito and the groundswell of revulsion they’ve touched off are no different from Donald Trump’s efforts to impugn the U.S. electoral system for his own political benefit. This is of course a risible and dishonest point for all the obvious reasons. It seems that for years or decades into the future we’ll be living with conservatives trying to get out from under the shame of Trumpism by saying this ordinary argument or that investigative journalism is comparable or no better than Donald Trump’s wars by conspiracy theory.
But the comment did get me thinking about the context of these exposés. It’s at least true that they do not arrive in a vacuum.
I don’t know particularly what got ProPublica working on the story. I suspect that like most of these investigative efforts it began with a tip, though I have zero inside knowledge. But it seems to me there is no question that the seedbed of these stories is the declining legitimacy of the Court itself. I make these arguments about the Court’s illegitimacy and corruption all the time. But you don’t have to take my word for it. How do we measure or define that? One measure is simple public opinion. While the Supreme Court has been the focus of political controversy for decades the level of respect and deference the public accorded it nevertheless remained quite high. Polls show that has fallen markedly in just a few years and precipitously just since the Dobbs decision a year ago.
But it’s not just particular opinions which are broadly unpopular with voters (abortion certainly counts). The conservative majority now barely goes through the motions of arguing that its decisions are rooted in any coherent theory of constitutional interpretation. Precedent, original language, history — all go out the window if they don’t help get to a decision that meets the conservative justices’ political or ideological goals. The legitimacy of the Court has always rested on the idea that the justices are operating within some coherent set of rules, some coherent interpretative framework beyond individual preference. Increasingly since Obama’s presidency and overwhelmingly in the last six years they’ve simply dropped the pretense.
The guiding jurisprudence might best be described as, “Too bad, suckas,” or perhaps, “Sucks to be you.” They’ve got the power and you don’t. And they really don’t care to pretty it up more than that.
All of this had been building for years but often on issues that are technical and generally out of the view of the public. In other cases they operate on issues which broad segments of the public care about a great deal — health care, civil and voting rights and more — but on which the action of the Court is indirect and difficult to see. The Court’s decision in Dobbs was no more surprising than many other decisions, if anything it was more clearly presaged than most others. But it had a vast impact across the whole national population and the role of the Court in forcing the change could not be more clear. In an era when support for abortion rights is clearly the majority, verging on an overwhelming majority, opinion, the Court simply said no. The aforementioned jurisprudential logic of “Too bad, suckas” couldn’t have been more clear.
With Sam Alito specifically we’ve also seen a complete abandonment of what used to be called “judicial temperament”: the idea that justices should act with a sense of decorum, public restraint and disinterest that could at least lend plausibility to the idea that the justices act as impartial referees of the constitutional order. Alito has become notorious as a sort of spectacle of peevishness, routinely giving wildly political speeches, calling out individual critical journalists by name. He has the temperament of a particularly cranky and irritable Twitter account despite being one of the longest-serving members of the high court.
Thomas and other members of the Court have also partaken of this brand of performative touchiness. But aside from Alito the root of it is not really temperament. The dynamic is different. The conservative justices want free rein to do as they please and the deference they see as their due. The conservative majority has run roughshod over a basic social contract underlying the status of the Court in American society: the public grants a deference and respect in exchange for a basic restraint and agreement to operate within some reasonable framework and bounds of action. The justices’ inability to have their cake and eat it too is what is behind this novel and increasingly public defensiveness.
Taken together this has created a situation where the vast power of the Court is on a raw and vivid display with none of the buffering of deference and respect that made that power and potential for abuse palatable. In that context everything the justices do looks especially worthy of scrutiny, every bit of unmerited entitlement. It all starts with the ultimate unmerited entitlement of the decision to exercise vast power with no restraint.
Put most simply the Supreme Court no longer gets public respect because it is not respectable.
When Antonin Scalia died in his sleep in February 2016 — the event that set in motion so much of what happened over the last 7 years — it was on one of these Thomas/Alito style junkets. At the time, the fact went all but unremarked. It was just treated as something justices did. Indeed, in this week’s Alito exposé we learned that Scalia went on one of these Leonard Leo-arranged Alaska fishing trips too. The same lodge and everything. Something pretty basic has changed. That change is that a large chunk of the population now sees the Court’s majority as fundamentally corrupt, abusing its power, indifferent to restraint, running roughshod over its own proper role in the constitutional system. That makes these comparatively minor forms of corruption more arresting and jarring, deserving of exposure. They are not fundamentally about the niceties of disclosure but more evidence and confirmation of the deeper rot.