Today, Explained - The Supreme Court’s legitimacy crisis

Episode Date: October 22, 2021

Since the Supreme Court’s "shadow docket" decision to allow the Texas abortion ban to go into effect, a growing chorus of politicians and legal experts have questioned the court’s legitimacy. Vox's Ian Millhiser says the justices aren’t taking the criticism well. Today’s show was produced by Will Reid with help from Amina Al-Sadi, edited by Matt Collette, engineered by Efim Shapiro, fact-checked by Laura Bullard and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

BetMGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with a sportsbook born in Vegas. That's a feeling you can only get with BetMGM. And no matter your team, your favorite player, or your style, there's something every NBA fan will love about BetMGM. Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM, a sportsbook worth a slam dunk and authorized gaming partner of the NBA.

BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Back in early September, the Supreme Court made one of its most controversial moves probably since it handed George W. Bush the presidency.

In an unsigned opinion, the court allowed a Texas abortion law that violated decades of its own precedent to go into effect. In Roe v. Wade, back in 1973, the court established a right to an abortion. For decades since, it has affirmed that decision while also chipping away at it. But in September 2021, the court took a big step back. It allowed Texas to enact SB-8, a law that would basically ban abortion after six weeks of pregnancy. And it allowed individuals basically anywhere to sue any person in Texas who helped someone get an abortion after six weeks. The decision came under fire immediately. Pressure mounted and hasn't waned.

Today, the court responded to that pressure. And as we come on the air, we have breaking news from the Supreme Court, which announced just a short time ago that it will hear a case relating to that Texas law that effectively bans nearly all abortions in the state. SB8 is still in effect, but they did announce that they will hear two lawsuits seeking to overturn SB8. Ian Millhiser writes about the Supreme Court for Vox. So the court is under a lot of pressure right now. There's been a lot of criticism about the court.

There's been a lot of criticism specifically that they are deciding important cases without full briefing and oral argument and that they're leaving a bunch of questions about the future of SB 8 open. So what the court has done now is it's going to move very quickly to resolve at least some of those questions. They are getting full briefing and oral argument, even though it's going to happen very fast. So I don't know for sure why the court is moving this fast, but it seems like it may very well be a response to a lot of the public criticism that the court has received. On the show today, Ian's going to retrace the complicated path of Texas SB8 and explain how it has a number of the justices on the defensive. The full timeline of SB8 starts last May, which is when the governor signed the law. And that's exactly what the Texas legislature did this session. They worked together on a bipartisan basis to pass a bill that I'm about to sign that ensures that the life of every unborn child who has a heartbeat will be saved from the ravages of abortion.

And it's been kicking around in the lower courts for a while. There's actually some shenanigans where the Fifth Circuit, which is a very conservative federal appeals court, tried to prevent an Obama-appointed trial judge from even hearing the case of whether or not this law should be blocked. Eventually, all of those legal shenanigans reached the Supreme Court a few days before the law was supposed to take effect on September 1st. And the parties waited for the Supreme Court to rule. The Supreme Court did not rule on whether or not the law should take effect, which meant it went into effect by default. And then the next day,

five of the justices said basically, oh, this case is too hard for us to rule on right now. And so we're going to let the law go into effect. And, you know, maybe at some later date, the Supreme Court will decide whether or not it's constitutional. How did the remaining four justices feel about that? So there were four dissents, including Chief Justice Roberts, who is very conservative and has historically been opposed to abortion rights. You know, Roberts just said, look, like we should maintain the status quo. We should put in a temporary order blocking this law while we're trying to figure out what to do with it. The three liberals were, I think, livid. You know, Justice Sotomayor pointed out that this

law was written specifically to frustrate judicial review. It was written in a way to try to take advantage of the rules governing who's allowed to sue and who you're allowed to sue in order to prevent anyone from suing to block the law. And Sotomayor just said, look, we shouldn't tolerate that because if we tolerate states writing unconstitutional laws that are written to frustrate the judiciary's intervention, that's going to have a lot of consequences. You know, there's a lot of other constitutional rights out there. And eventually a state's going to pull this with the law that the Supreme Court actually cares about.

And she had some pointed words about her colleagues, too, right? Oh, yeah. I mean, Sotomayor's opinion was very strongly worded. I'll just read the opening here to give you a sense of how Sotomayor felt about this. The court's order is stunning, she wrote, presented with an application to an enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny. A majority of the justices opted to bury their heads in the sand. Shots fired. So the Supreme Court fails to do

anything about this law. What happens next, legally speaking? So there's a second suit going on right now. This suit was brought by the Justice Department. The plaintiff is the United States of America. And the argument here is essentially that someone has to be able to enforce the U.S. Constitution. And if the courts aren't willing to let anyone else do it, then the United States itself has to be able to step in and enforce the Constitution. that argument. And the law was blocked basically for a night before the conservative Fifth Circuit stepped in, blocked the lower court's decision blocking the law. And now that case is up in front of the Supreme Court again with DOJ making the same argument. And the Supreme Court responded to both the DOJ and abortion providers in Texas who are suing as well today, right? That's correct. The only thing that today's orders say is that the court will hear the cases

that were brought both by the abortion providers and by the Justice Department asking them whether either party is allowed to sue to block this law, but they are going to resolve both of those questions. How do we think it's all going to shake out? Does the fast tracking mean that the conservative justices on the court sort of realize that they stepped in it? I don't know. I mean, the fast tracking could definitely end in a very bad answer for people who care about abortion rights. They could say that neither party could sue and that SB8 stands forever. One thing to bear in mind, however, is that the specific question before the court in these two cases is very narrow. The only question is whether or not anyone is allowed to sue to block SB8. The question of whether or not Roe v. Wade is going

to be overruled in its entirety remains live. That's probably going to be decided in the Dobbs case, which is being argued on December 1. So even as the Supreme Court is sort of hustling to answer these procedural questions about who, if anyone, is allowed to sue to block the Texas law, there's this other case looming, which is an existential threat to the right to an abortion. And meanwhile, like irrespective of how SB8 lands, this whole affair has been exceptionally messy for the Supreme Court of the United States. It's been very messy. I mean, here's the thing about it. I cannot imagine that if any other right was targeted in the same way that SB8 targets abortions, like imagine that New York passed a law saying that any person could sue anyone who owns a gun and collect a ten thousand dollar bounty from them. Do you think the justice would know they

wouldn't allow that law to go into effect? Like imagine if Congress passed a law saying that if anyone criticizes President Joe Biden, then any person can sue them and collect a bounty. Is the Supreme Court going to allow that sort of attack on the on the First Amendment? Hell no, they aren't going to allow that. You know, it's the fact that this law is so blatant and it is structured in a way that is really an existential threat to the concept of constitutional rights altogether. I mean, again, if states are allowed to use this sort of bounty system in order to evade judicial review, then we don't have constitutional rights because the only thing a state needs to do to get around any constitutional right at once is write an SB8 style bounty hunter law that attacks that right. So I just can't imagine that the court would allow something like this to take effect in any other

context. And I think that the fact that this law is just so ridiculous is fueling a lot of the sentiment, especially amongst Democrats, that the Supreme Court isn't on the level, that fueling a lot of the sentiment, especially amongst Democrats, that the Supreme Court isn't on the level, that there's a legitimacy problem there, that they're not deciding cases based on the law. They're deciding them based on their their personal preference. And that maybe there needs to be some sort of reform of the Supreme Court to make sure that that stops. The honor of all the chief justice and the associate justices of the Supreme Court More with Ian in a minute. Now sitting. Okay. God save the United States and this honorable court. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family, and Aura says it's never been easier thanks to their digital picture frames.

They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an aura frame as a gift, you can personalize it, you can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an aura frame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday

and she's very fortunate. She's got 10 grandkids and so we wanted to surprise her with the aura frame and because she's a little bit older it was just easier for us to source all the images together and have them uploaded to the the frame itself and because we're all connected over text message it was just so easy to send a link to everybody you can save on the perfect gift by visiting AuraFrames.com to get $35 off Aura's best-selling Carvermat frames

with promo code EXPLAINED at checkout. That's A-U-R-A-Frames.com promo code EXPLAINED. This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply. Ian, let's talk about this legitimacy crisis. Where does it begin? So I think you have to say the words Merrick Garland here if you're going to talk about why Democrats, why liberals are so mad about the Supreme Court.

The Attorney General of the United States. The Attorney General of the United States and former Supreme Court nominee Merrick Garland. Today I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court. So in 2016, Justice Scalia dies. And after many, many years of the Supreme Court having a 5-4 conservative majority, Scalia's death meant that then-President Obama could replace him. There would be a 5-4 liberal majority, and that would have been a sea change. I mean, we really haven't had a liberal court since the beginning of the Nixon administration.

And Republicans viewed that as an unacceptable crisis. Ms. President, the next justice could fundamentally alter the direction of the Supreme Court. And so almost immediately, Mitch McConnell, the Senate Republican leader, announced that there would be no hearing for anyone that Obama nominated. The seat must be filled by whoever is the next president. Of course, the American people should have a say in the court's direction. And of course, the next president was Donald Trump. Donald Trump appoints Neil Gorsuch. Judge Neil Gorsuch of the United States Supreme Court to be of the United States Supreme Court.

And I think a lot of Democrats left feeling like a seat was stolen from them. When McConnell deprived President Obama of a vote on Garland, it was a nuclear option. The rest is fallout. And then four years later, shortly before the 2020 election, just a few weeks before the 2020 election, Justice Ruth Bader Ginsburg dies. And all of a sudden, Judge Amy Coney Barrett. Republicans race to confirm Amy Coney Barrett, Trump's nominee, to fill Ginsburg's seat. They actually confirm Barrett eight days before Election Day. So in 2016, Republicans were saying under no circumstances can you confirm a justice during a presidential election year. And in 2020, they're saying eight days before an election, we're going to confirm a justice.

My colleagues, there is no escaping this glaring hypocrisy. As I said before, no tit-for-tat, convoluted, distorted version of history will wipe away the stain that will exist forever. Which feels unfair, but also just feels like politics, right? Like the Republicans are playing a political game

better than Democrats are. Is it like the greater American public who feels like there's a credibility problem here? Or is it just like Democrats and I don't know, senior correspondents at Vox? I mean, it's a fair question. There are several recent polls showing that the Supreme Court is has its lowest approval ratings, according to some of the polls ever measured by that particular poll. Now, I think that that's driven more by the abortion decision that we were talking about before the break than it is driven by Merrick Garland or Amy Coney Barrett. Yeah, it is notable that several of the just actually four of the justices have recently given speeches that are very, very defensive. You know, Justice Breyer is the one liberal who has done this.

He wrote a whole book, which I wrote a fairly scathing review of. It's not a very good book. You know, isn't it like 100 pages? Yeah, it's this tiny book. A whole book feels generous. Yeah, yeah, yeah. It is a it is a small book like object that he wrote. And this clip.

I'm going to show you how to dunk on someone which argues essentially that we shouldn't be criticizing the Supreme Court as political, that it's unfair to say that justices are handing down partisan decisions. And that's been echoed by Justice Clarence Thomas in a speech that he recently gave. I think the media makes it sound as though you are just always going right to your personal preference. So if they think you're anti-abortion or something personally, they think that that's the way you always will come out. They think you're for this or for that. They think you've become like a politician. And I think that's a problem're going to you're going to jeopardize any faith in the legal institutions. Mitch McConnell. And there are actually pictures of Mitch McConnell sitting next to her, gazing admiringly upon her as she argues that the Supreme Court is not a bunch of, quote, partisan hacks. So like they do seem to be very defensive right now. They do seem to feel like whether it's the drop in the court's polls, whether it's the attacks on the court's credibility, are serious enough that they as justices need to get out into the public circuit and try to rebut it. I mean, what happens if the Supreme Court of the United States isn't viewed as legitimate across the country? I mean, it's a tough question. We know what happens when parts of the country don't view the Supreme Court as legitimate.

I mean, that's what happened in the South in response to the Brown v. Board of Education decision. The Supreme Court said black children would go to school with white. The South said never. You had massive resistance where states refused to comply with the decision. In some cases, the United States had to send troops to those states in order to enforce those decisions. The federal officers are armed with a proclamation from President Kennedy urging the governor to end his efforts to prevent two Negro students from registering at the university. The governor is adamant.

And so you can imagine a situation where the Supreme Court strikes down some blue state governor's signature legislation on some extraordinarily dubious legal theory. And that blue state governor also decides to put up similar resistance, says to President Biden, we're not going to comply with this decision unless you send troops. The other thing to understand about the Supreme Court, I think this is why Mitch McConnell understood that it was so important for his party to control it, is that the Supreme Court has basically become the locus of policymaking in the United States right now. Congress is barely able to act. The Supreme Court can do anything it wants with five votes. And so we're seeing this massive shift in power away from the branches that are supposed to be making decisions because they can't function very well right now and towards the Supreme Court, which is able to make decisions quite quickly, but is made up of people who have never run for an election in their life. What's the most charitable defense that, you know, Breyer and Barrett and Alito and Thomas are right that the court isn't partisan right now. So the argument that they make is that they are not making these decisions because they are Republican partisans who want Republicans to win. They are making them because they have a

judicial philosophy. Barrett made this argument explicitly, like i have an originalist judicial philosophy that leads me to certain outcomes you know it happens to be the case that the republican party may like those outcomes but it's not because she is a partisan are there examples of her judicial philosophy leading to outcomes that conservatives don't like? I mean, the one big recent example of a justice, you know, applying what they claim to be their judicial philosophy in a way that cut against their politics is Justice Neil Gorsuch wrote the opinion in Bostock, which was an important gay rights decision. Six to three opinion, which in ringing terms holds that the Civil Rights Act of 1964, that the language, the text of that law encompasses lesbian, gay, bisexual and transgender people in this country,

protecting them from discrimination by their employers. Justice Gorsuch says that he's a textualist, which means that you look at the words of the law, you try to figure out what they meant when they were drafted, and that's it. That's all you're supposed to do as a judge. And Gorsuch, I think, wrote a good opinion in Bostock. So good for him. I mean, I don't see any reason to doubt what most of the justices are saying when they are saying that they are making decisions because they have a certain ideological view, a certain judicial philosophy, and not because they are just partisan hacks who want the Republican Party to win in every single case. Like, I think for almost all the justice that is probably right, they are not partisan hacks. They also didn't overturn the 2020 election, right?

There's that. There is that, although like Trump's arguments for overturning the 2020 election were so clownish that like, you know, if if law matters at all in the United States, you know, I guess the way that I think about it is this. There are certain legal arguments that are completely off the wall. Like if you make them, you'll be laughed out of court. And then there are certain legal arguments that fit within like the range of plausible arguments. And historically, what normally happens is that conservative justices, when confronted with an argument that is within that range of plausible arguments, will tend to pick the most conservative plausible argument and liberals will tend to pick the most liberal plausible argument. The problem is that the law is built on precedent. You know, as the courts decide cases, the range of plausible arguments shift. And so if you have a court that is consistently handing down conservative decisions, then over time, the range of plausible

arguments will inexorably move to the right until eventually arguments that were ridiculous 10 years ago will suddenly become very plausible. And so when Trump was trying to say, hey, let's overturn the 2020 election, he was making ridiculous arguments. But also the court hadn't done the work of marching the law to the right over the course of a decade or more so that Trump would have a plausible argument that he could have made to overturn the 2020 election. Is there an example of having a more conservative court leading to a different way of doing business on the court? review and in doing so get around what is long been understood to be a constitutional right. I mean, if you had asked me if the court would have allowed that six months ago, I would have said no, that that is too far. And I would have been wrong. The other thing to bear in mind about the SB8 case is that it arose on the court's so-called shadow docket. The shadow docket refers to asking the court to rule very, very quickly

on cases that in the past they would normally give it a lot of time to percolate in the lower courts before they stepped in. And I think that the fact that the court is trying to move so quickly is a sign of the court's impatience. The reason why the justices normally like to let cases spend a lot of time cooking before they rule, you know, they want a lot of lower court judges to weigh in first. They want to have full briefing and oral argument before they weighed in is because the Supreme Court has the final word. And when you have the final word, if you act too quickly, you can get the answer wrong. And then that wrong answer is going to linger because there's no one who can overrule you. And so historically, the Supreme Court was very, very cautious about getting things wrong

and, you know, wanted to take a lot of time to think about things. I think that the fact that they are moving more and more cases to the shadow docket is indicative of the fact that this court values that sort of careful deliberation less than previous courts did, and that it places much greater weight on getting to the result that they want as quick as possible. So, I mean, what's to be done about this? The court has shifted to the right. It's affecting its legitimacy.

It's affecting the perception of the court in the eyes of the American people. This could lead to something cataclysmic where a Supreme Court decision isn't honored in some given state. And who knows, the president might need to send in the troops to enforce it. It would be an ugly picture. Apart from packing the court, is there any solution to sort of rebalance it and regain legitimacy lost? I mean, yeah, I mean, there are sort of hard power things that could be done to try to rebalance the court. I mean, packing the court you mentioned means that Congress would pass a law adding seats to the Supreme Court. So you could add four seats to the Supreme Court. Biden would fill those seats. And now we have a seven to six Democratic majority instead of a six to three Republican majority. That's the sort of like raw power solution that could be used. I mean, there are other sort of raw power solutions that could be used. The way that we have avoided this kind of crisis in the past is through judicial restraint. It's

through the justices realizing that they are not elected. They have limited legitimacy. And this is true even without the whole Merrick Garland debacle. You know, the justices have understand, look, we've got a limited amount of credibility here. We need to restrain ourselves. And what worries me about this Supreme Court is that it isn't showing that instinct towards restraint. You see that with these abortion cases. You see it with the cases attacking voting rights. There's a big guns case in front of the Supreme Court that's likely to massively expand the Second Amendment. It's challenging a New York law that's been on the book for 100 years.

So, you know, in the past, the thing that has prevented legitimacy crises is judicial restraint. And I fear that these justices just don't have that instinct for restraint. And I fear that these justices just don't have that instinct for restraint. Ian, thank you. Thank you. Ian Millhiser is a senior correspondent at Vox. You can find all his coverage of the Supreme Court at Vox.com.

He's also written a few full-length books about the Supreme Court. His latest is titled The Agenda, How Republican Supreme Court is Reshaping America. Our episode today was produced by Will Reed, edited by Matthew Collette, engineered by Efim Shapiro, and fact-checked by Laura Bullard. We had production help from Amina Alsadi, who's the show's supervising producer. Paul Mounsey helped out this week, too. The rest of the team includes Hadi Mawagdi,

Victoria Chamberlain, Miles Bryan, and Halima Shah. Liz Kelly Nelson is the veep of audio at Vox. Jillian Weinberger's the deputy. Thanks to Ness Smith-S Savidoff for keeping us fresh. I'm Sean Ramos for them. Today Explained is part of the Vox Media Podcast Network. Thank you. you