Bashing the Supreme Court is an American tradition ~~Jeff Jacoby

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Tuesday, July 11, 2023 By Jeff Jacoby, Globe Opinion columnist  Follow me on Twitter “This is not a normal court,” President Biden told reporters at the White House following the Supreme Court’s decision that race-based affirmative action in college admissions is unconstitutional. As criticisms go, that was quite measured, especially after the torrent of condemnation poured on the court after last year’s abortion decision in Dobbs v. Jackson Women’s Health Organization. Critics then were tripping over themselves in their rush to declare that the high court had lost all legitimacy and no longer merited the respect or obedience of American citizens. The justices “have burned whatever legitimacy they may still have had,” seethed Senator Elizabeth Warren in a typical example of the 2022 outrage. “They just took the last of it and set a torch to it.” Everywhere on the left, there were similar denunciations. Senator Ed Markey railed against “the illegitimate, far-right majority on the Supreme Court,” Representative Alexandria Ocasio-Cortez diagnosed “a crisis of legitimacy,” and the head of the Democratic National Committee scorned “this illegitimate Supreme Court.” The progressive journal Current Affairs proclaimed in a headline: “The Supreme Court Has Destroyed Its Legitimacy and There Is No Reason to Respect It.” In The Grio, journalist/activist David Love called for abolishing the high court: “Now is the time to shut the whole thing down and start from scratch before more people die.” The Jacobin, a socialist magazine, was only slightly less apocalyptic: “For too long, progressives have accepted without question the legitimacy of the courts,” it thundered. “That needs to change now.” But the Supreme Court doesn’t become “illegitimate” just because it issues a decision a lot of people detest. US history abounds with rulings that provoked rage, shock, and calls for massive resistance. From Dred Scott v. Sandford in 1857 to Brown v. Board of Education in 1954 to Roe v. Wade in 1973 to Bush v. Gore in 2000, the high court has often sent critics into paroxysms of wrath. Perhaps no SCOTUS ruling was ever more widely loathed than Engel v. Vitale, the 1962 case in which the justices forbade government-sponsored prayer in public schools. Polls at the time found that 8 out of 10 Americans disapproved of the ruling. According to one scholar, “Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the justices than perhaps any other decision in Supreme Court history.” With Supreme Court justices sitting in the audience, President Barack Obama denounced the Citizens United decision during his 2010 State of the Union address. Yet in each of those cases, the court’s decision was treated as binding. Just as Dobbs, once the tumult and the shouting died, was accepted as the law of the land. And just as the latest controversial rulings on racial preferences, same-sex wedding websites, and student debt cancellation will be accepted. Like most institutions in our strident era, the Supreme Court’s reputation has taken a hit. But if the measure of judicial legitimacy is that rulings are obeyed, then the court’s legitimacy is intact. “Not a normal court”? That is hardly the worst thing presidents have said when justices ruled in ways they didn’t like. In 1801, President Thomas Jefferson condemned the “fraudulent use of the Constitution” that had filled the courts with “useless judges” who were using the judiciary as a base from which “all the works of republicanism are to be beaten down and erased.” Three years later, he would go further, urging his allies in the House of Representatives to impeach Justice Samuel Chase, a staunch Federalist, on the grounds of political bias. (Chase was impeached, but the Senate refused to convict.) In 1937, President Franklin D. Roosevelt was so incensed by Supreme Court rulings invalidating several New Deal measures that he famously tried to “pack” the court — i.e., to create additional seats in the hope of filling them with justices more to his liking. In one “fireside chat,” he said Congress had to act “to save the Constitution from the court and the court from itself” and demanded “a Supreme Court which will do justice under the Constitution — not over it.” Ultimately, FDR’s court-packing scheme went nowhere. Harsh, too, was President Barack Obama’s attack on the justices to their faces during his 2010 State of the Union address. Vilifying the court’s decision in Citizens United v. FEC, which upheld the right of corporations and unions to spend money on political campaigns, Obama accused the justices of having “open[ed] the floodgates for special interests” and allowing elections to be “bankrolled by America’s most powerful interests, or worse, by foreign entities.” I say, have at it. Presidents should feel as free to excoriate Supreme Court justices as they do to upbraid lawmakers, and members of Congress who feel like slamming the court as “illegitimate” when a ruling doesn’t go the way they want should go right ahead and do so. Let legislators say what they wish about judicial decisions. Ideally, of course, they should express themselves with dignity and care, but they’re politicians, so expect intemperate hyperbole from most of them. What matters in the end is that the court’s decisions are adhered to and the constitutional order respected. The executive, legislative, and judicial branches are co-equal in our system, and need not see eye-to-eye. To be a “government of laws and not of men” requires that when the court says what the law is, the nation complies. But it also means that the men (and women) who want that law changed have every right to say so, as vigorously and sharply as they like.