Is SCOTUS Illegitimate?

One tactic progressives are trying out in their frustration with the eminently reasonable Dobbs decision which sent abortion back to the states is to declare the Court "illegitimate."

Over the weekend Rep. Alexandria Ocasio Cortez opined that the Court has created a crisis of legitimacy because Clarence Thomas' wife sent tweets on January 6th expressing her concerns about the November election.

Senator Elizabeth Warren tied her conclusion that the Court is illegitimate more directly to the Dobbs decision. Her solution was to make the Court truly illegitimate in the eyes of the public by packing it with additional left-wing Justices.

On what grounds do these and other Democrats argue that the Court is illegitimate? There are several.

One is that because the Court hands down rulings that they don't like that makes it illegitimate. This is, of course, absurd. The Court is not a legislature. It doesn't, or shouldn't, bend to the popular will. It's role is to assess whether a given statute is consistent with the Constitution as well as determine whether rights that are claimed by plaintiffs really are granted by the Constitution.

Popularity should have nothing to do with these judgments. As others have pointed out the IRS is not popular but it's not for that reason "illegitimate."

Jim Geraghty notes the irony that if someone were to claim that Joe Biden is an illegitimate president "many Democrats will react with outrage and contend that this belief is an attack on democracy and the American government itself. But if you argue that the Supreme Court is illegitimate, you are qualified to be a leader in the Democratic Party."

Another reason some Democrats are proffering for declaring the Court illegitimate is that several of the nominees who voted to overturn Roe allegedly lied to Senators during the confirmation process. According to this allegation they told Senators that they would not overturn Roe and then they did.

Did they lie? According to the Wall Street Journal that's very unlikely:

Perhaps the most unfortunate claim is that the Justices in the Dobbs majority lied during confirmation hearings. The charge is that they suggested that Roe v. Wade was a precedent that couldn’t be overturned.

Coaxed on the point on “Meet the Press” on Sunday, Rep. Alexandria Ocasio-Cortez said this is grounds for impeachment, and don’t be surprised if other Democrats pick up that cudgel.

Sens. Susan Collins and Joe Manchin said Friday they feel Justices Brett Kavanaugh and Neil Gorsuch deceived them on the precedent point in testimony and in their private meetings with the Justices. We weren’t in those meetings, but we’d be stunned if either Justice came close to making a pledge about Roe. The reason is that the first rule of judging is that you can’t pre-judge a case. Judges are limited under Article III of the Constitution to hearing cases and controversies, and that means ruling on facts and law that are specific to those cases.

No judge can know what those facts might be in advance of a case, and judges owe it to the parties to consider those facts impartially. A judge who can’t be impartial, or who has already reached a conclusion or has a bias about a case, is obliged to recuse himself. This is judicial ethics 101.

There's no transcript, as far as I know, of those private meetings, so it's hard to tell if perhaps the senators misunderstood what they were being told, but the question came up in public hearings and there was no ambiguity in the candidates' answers:

Here’s Justice Gorsuch: “Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. . . . So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

He added that “If I were to start telling you which are my favorite precedents or which are my least favorite precedents, or if I viewed precedent in that fashion, I would be tipping my hand and suggesting to litigants that I have already made up my mind about their cases.”

And here’s Justice Kavanaugh: “Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992. . . . So that precedent on precedent is quite important as you think about stare decisis in this context.” He made no specific pledge about either case that we have seen.

Justice Amy Coney Barrett expressly rejected the idea that Roe was a super precedent.

In other words, those three nominees all granted that Roe was an important precedent, but they did not say that that made Roe immune from reconsideration.

I think there's a lot of truth in the WSJ's conclusion:

The fury of the left’s reaction isn’t merely about guns and abortion. It reflects their grief at having lost the Court as the vehicle for achieving policy goals they can’t get through legislatures.

The cultural victories they achieved by judicial fiat will now have to be won by persuading voters.

That's how a representative democracy is supposed to work. The people decide through their elected representatives what the laws will be in their states and the Supreme Court ultimately decides whether those laws are compatible with the Constitution.

By overturning Roe, a case in which a right to abortion was declared to exist that actually doesn't exist anywhere in the Constitution, SCOTUS returned abortion to the states for the people to determine what they want the law to be where they live.

Unfortunately, that exercise in genuine democracy seems to have outraged the left.