Since Dobbs, liberal justices have returned to this theme time and time again. In remarks to the American Constitution Society, Judge Sotomayor urged her audience not to lose “faith in the justice system,” expressing the hope that the justices could “regain the public’s confidence that we — as a court , as an institution – have not lost our confidence.” way.”
Similarly, Judge Kagan, speaking to an audience at Northwestern University Pritzker School of Law, warned that the court’s legitimacy would be compromised if its decisions were seen as an “extension of the political process.” The Supreme Court should “act like a court,” she noted, as if the law’s greatest sin is when it appears to be political instead. The court fails in this regard, Judge Kagan explained, when the body deviates from precedent (except in “unusual circumstances”) or moves forward by “leaps” rather than “incrementally.” In saying so, she seemed to join her colleague, John Roberts, whose approach to adjudication has been widely praised by liberal legal commentators for moving the law steadily but less quickly to the right than his fellow conservative judges.
This theme of philosophical inconsistency has continued into the current term, with the court’s newest member, Justice Jackson, receiving near-universal acclaim from liberals for her use of constitutional history in support of affirmative action and voting rights. During oral arguments on both sets of cases, Judge Jackson’s strong insistence that the 14th and 15th Amendments accommodated post-Civil War race-conscious remedies showed that the stated commitment to originality among right-wing judges was at odds with their political agenda of inventing a ” colorblind” constitutional law.
It is fair and sometimes even effective to point out such hypocrisy. However, the most striking feature of all this liberal dissent is how fundamentally conservative it is. To thwart an institution in crisis precisely because it continues to fail the liberals is to choose not to do other things if they disagree. So do conservatives by suggesting that their methods of interpretation could serve liberal purposes if there were more liberal voices.
These judges’ calls for institutional legitimacy are part of a wider conversation about judicial reform that is both more heated and serious than it has been in nearly a century. Democrats remain divided on what reforms (if any) are needed. But a consensus seems to be emerging, at least among progressives, that it is necessary and appropriate to treat the judges as political actors, increasingly limiting the court’s authority given its status as an undemocratic and historically reactionary institution.
Among the liberal judges, on the other hand, reform is recognized only as something to be anticipated through exercises in self-control. They have clenched horns with their reactionary colleagues, agreeing with them that the Supreme Court should remain the arbiter of its own vast power to do right or wrong — though, as Judge Sotomayor pointed out disarmingly during the oral arguments of Dobbs, “There is so much that is not in the Constitution, including the fact that we have the last word.”
Likewise, they have appealed to the mind of arch-conservative judge Antonin Scalia when it serves their purpose — in Dobbs, to question the majority’s assurances that canceling abortion rights would not put other rights on the chopping block. Yet the liberals have not opted for a democratic attack on the judiciary that he developed. In one case, he dissentingly noted, “the power of our people to govern themselves and the power of this Court to pronounce the law” was at stake. Nor was he above issuing warnings when he thought the problem was the other party’s self-aggrandizement at the expense of self-government. “I am writing,” he began another inflammatory dissent, “to draw attention to this Court’s threat to American democracy.” Judge Scalia’s hypocrisy was that he made such claims selectively. But today’s liberals don’t make them at all.