Is the Current Supreme Court Legitimate?

“Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Supreme Court Chief Justice John Roberts on increasing public sentiments that the current Supreme Court lacks credible legitimacy.

“I think judges create legitimacy problems for themselves—undermine their legitimacy—when they don’t act so much like courts and when they don’t do things that are recognizably law and when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.”

Supreme Court Associate Justice Elena Kagan Responding

The entire federal judicial system, built on seemingly neutral lifetime appointments, is shaking and shuddering. Recent judicial rulings from Trump-appointed judges and appellate justices are increasingly following seemingly lockstep in line with MAGA doctrines, culminating in Dobbs vs Jackson Women’s Health Organization that reversed Roe vs Wade this summer. Plus another pending case, which threatens to limit the right to redistrict to officially labeled state “legislatures” and not voter elected commissions, thus limiting protections for minority voting rights (Harper vs Moore to be re-heard in the fall term).

But those Supreme Court’s conservative changes began accumulating in 2010, long before the Trump appointments, as the court enabled big money virtually free rein in funding political campaigns (not directly controlled by candidates) in Citizens United vs FEC, the first of several cases – starting with Holder vs Shelby County in 2013 – that eviscerated most of the Voting Rights Act of 1965 (as amended, most recently, in 2008), and the 2014 case of Burwell v. Hobby Lobby Stores that allowed companies to discriminate (for religious reasons, against certain LGBTQ+ issues) in employer-provided healthcare coverage.

But in addition to Dobbs, then the Trump reconfigured, 6-3 right wing Supreme Court continued nullifying virtually any remain protections under the Voting Rights Act (Brnovich v. Democratic National Committee in 2021), determined that a school district could not prevent a public-school high school coach from leading his team in Christian prayers after games (Kennedy vs Bremerton School District this year), reversed a long-standing New York law limiting applications for concealed carry permits New York State Rifle & Pistol Association, Inc., et al. vs Bruen) and ruled that banning public financing for private religious schools was unconstitutional (Carson vs Makin). You could pretty much bet that issues involving evangelical Christian values and states’ rights (the 10th Amendment) would somehow be resolved along MAGA lines, even it that meant ignoring and reversing major prior Supreme Court rulings. See also my July 10thNational Priorities Be Gone! States Now Rule! and my recent Constitutional “Protection” is for Christians Only? blogs.

Ethical lapses and questionable background checks – notably the exceptionally cursory examination of sexual assault claims against both Clarence Thomas and Brett Kavanaugh before their Senate Supreme Court confirmation and Ginni Thomas (Clarence’s wife’s) lobbying White House and state officials to find ways to overturn Trump’s election loss – did little to ameliorate the notion that the quality of the Court was being severely undermined. That each Trump nominee lied during confirmation hearing about their stance on supporting Roe also eroded the Court’s fundamental integrity.

That slam to legitimacy is also noteworthy where lower federal courts engage in activities and rulings that clearly have their genesis in a glaring undercurrent that seems to say, “since I was appointed by Donald Trump, I will twist and turn to support his vision of relevant litigation.” Nothing screams that extra-judicial bias than a federal trial court’s supporting Donald Trump’s unsubstantiated claim that there is no proof from the DOJ that the documents labeled classified and found at Mar-a-Lago were in fact classified… without a shred of evidence of FBI misconduct, where documents marked classified have always been treated with the highest priority of confidentiality, and where any delay in both a continued FBI examination of documents seized under warrant and the FBI’s ability could easily prejudice the FBI’s following elusive leads in a criminal investigation and our national security, and well before any criminal charges (indictment) have been brought.

In a ruling on September 15th, Southern Florida Federal District Court Judge Aileen Cannon ruled against the DOJ in its investigation of Donald Trump’s classified document stash at his home, after his legal team swore under oath that he had already fully disgorged all subpoenaed documents in his possession. Judge Cannon said she did not have confidence in the FBI’s arguments that those classified documents were indeed classified; that the special master she appointed would have to make that determination before she would lift a stay against further FBI investigation of Mr Trump’s purportedly illegal possession of those documents. That such documents were the property of the Archivist of the United States and not of any ex-president carried no weight.

Effectively, Judge Cannon did what I have never seen before: she allowed a potential criminal defendant to stop the FBI from investigating him until a neutral third party verified the FBI’s position. National security was irrelevant. That Donald Trump’s pattern of dealing with decades civil and criminal litigation is almost always predicated on constant delaying tactics… hoping witnesses get stale, the government tires of pursuit and settles at a much lower level… did not matter. Judge Cannon took care of the man who appointed her to the detriment of the people of the United States. That one of the hallmarks of transitional autocracy is the elimination of an objective judicial system to one favoring the autocrat. Guess what’s happening here?! Oh, an appeal to a primarily Trump-appointed 11th Circuit is pending.

I’m Peter Dekom, and I am deeply sorry, Mr. Justice Roberts, but a continued right to be treated as legitimate and correct must be earned; you do not just get respect by putting a name on a fancy building… while ignoring the system it is supposed to represent.