Chief Justice John Roberts and his colleagues have a problem on their hands. Americans have an increasingly low opinion of the Supreme Court. Thanks to its aggressive and corrosive rulings, a growing number of voters and elected officials favor structural reforms to rein in the conservative justices—by expanding its size, narrowing its jurisdiction, and other major changes.
The chief justice rose to the court’s defense during a legal conference on Wednesday. “I think at a very basic level, people think we’re making policy decisions, [that] we’re saying we think this is what things should be as opposed to this is what the law provides,” Roberts said, according to NBC’s Lawrence Hurley. “I think they view us as truly political actors, which I don’t think is an accurate understanding of what we do. I would say that’s the main difficulty.”
While Roberts reportedly acknowledged that people have a right to criticize the court and its rulings, the chief justice also claimed that the court’s decisions were not political in nature. “We’re not simply part of the political process, and there’s a reason for that, and I’m not sure people grasp that as much as is appropriate,” he told the audience.
Let’s start by clarifying the terminology here, since it matters more than it might seem at first glance. There is a strong tendency in American parlance to use the term “political” in a purely pejorative sense, often with the implication of unsavoriness, partiality, or even a whiff of corruption or bias. Sometimes people use it when they actually mean “partisan,” or merely to describe something that expresses an opinion or viewpoint with which they disagree.
Politics is merely the term for how we order our lives and our society. In its broadest sense, everything is political. Where you buy groceries or clothes can be a political act. Paying (or not paying) your taxes is a political act as well. Voting and speaking out are obviously political acts, but they are not the only forms of political expression. Abstaining from politics—by which people often mean electoral politics and civic participation—is also itself a deeply political choice.
This negative connotation of “politics” is so deeply engrained that it’s not worth challenging people about it in passing conversation. When someone says, “I don’t want to talk about politics,” for example, what they often mean is “I don’t want to be disagreeable in a social setting.” That’s perfectly fine. But sometimes people think “politics” is just what other people are doing or saying, while their own views and beliefs are “common sense.”
The problem is that Roberts appears to be transposing that popular understanding onto the three branches of the federal government. In his apparent view, Congress and the presidency—the elected branches—are engaged in the grubby, sordid, and demeaning day-to-day work of politics, which he describes as the “political process.” The Supreme Court, on the other hand, serenely stands above the fray in its marble palace in Washington, D.C.
Some legal scholars have described this worldview as “judicial self-aggrandizement.” In 2023, Georgetown University law professor Josh Chafetz argued that the justices “hold themselves out as a pure, reason-based alternative to the messy business of the ‘political branches’” as a means to empower themselves. “In the judges’ presentation, it is not the courts taking power for themselves; the courts are simply neutral conduits for the law, which happens to limit the powers of the other institutions,” he explained.
There are strong echoes of this in the Roberts Court’s jurisprudence. The chief justice and his colleagues, particularly the conservatives, have often treated electoral politics as inherently corrupt and self-serving. They have even done so while removing constraints on actual corruption, making the American electoral system less responsive to the public, and imposing subjective judicial vetoes across the nation’s policymaking apparatus.
In a line of cases starting with 2016’s McDonnell v. United States, for example, the court has all but recognized a First Amendment right to pay-to-play politics by narrowing federal bribery laws to only “official acts” in their most literal form. The justices could have upheld the conviction on narrow grounds while signaling that more innocuous gifts, like taking someone out to lunch, would not qualify. They chose otherwise.
Two years ago in Snyder v. United States, the conservative majority also decriminalized “gratuities”—bribes given to state and local officials after an official act is performed, instead of before it—because it feared that the law could criminalize “gift cards, lunches, plaques, books, framed photos, or the like.” It cited no cases where federal prosecutors had done that, nor did it reckon with the actual facts of the case. Instead the high court relied on amorphous federalism concerns, even though Congress had tied it to officials who spend federal funds, and second-guessed Congress’s intent over the plain text of the statute.
This freewheeling approach only applies to the other branches. In 2015, the Supreme Court upheld a Florida law that bars elected judges and judicial candidates from personally soliciting campaign donations. If Congress had passed an identical law that imposed the same restrictions on congressional and presidential candidates, I have little doubt that it would be struck down by this court in a heartbeat on First Amendment grounds.
Courts are special, Roberts instead wrote in his majority opinion. “Judges are not politicians, even when they come to the bench by way of the ballot,” he wrote. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A state may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”
The message from all these rulings is that Americans have no right to expect honest services from other government officials. They should not assume that lawmakers, governors, or presidents will ever act in the public interest, to exercise their best independent judgment, or to conduct themselves with any sense of civic integrity. Nor should Americans count on the law to punish public officials for misconduct. If ordinary people want to get something out of their government, they should tip early and tip often.
Even then, you might be out of luck. The Supreme Court has spent the last twenty years making America nearly ungovernable. This trend can also be traced to the court’s self-aggrandizement, particularly when it comes to Democratic presidents. Thanks to the court’s embrace of partisan gerrymandering since 2019, most Americans no longer live in competitive House districts. The lawmakers who are elected are increasingly extreme figures who can pass purity tests in primary elections, where any remaining competitiveness takes place. Combined with the gutting of campaign-finance laws, lawmakers—and particularly GOP lawmakers—are beholden not to the voters, but to well-funded special interests who can tip a primary race (early and often) one way or the other with superPAC money. Congressional dysfunction is not entirely the Supreme Court’s fault, but they have made it nearly impossible to fix.
Even if Congress were more functional, the Supreme Court has given itself free rein to second-guess the legislative branch’s judgment and discretion. The major-questions doctrine mainly curbs executive policymaking, but it also substantively narrows Congress’s power as well. To survive its vague and subjective terms, lawmakers must pass new laws for new circumstances instead of allowing existing laws to be applied in novel ways. The Supreme Court has only ever applied this doctrine to Democratic presidents; half of them refused to use it to strike down Trump’s tariffs despite the clear opportunity to do so.
Take, for example, how Justice Samuel Alito wrote about the Clean Water Act in a 2023 case. Congress enacted the CWA to clean up pollution in the nation’s waterways and protect them from further despoiling. It was the will of the American people, expressed through their legislature, that these waterways be protected. Congress has not repealed the CWA or amended its scope more narrowly. Alito, however, thought differently. The law, he complained, imposed “crushing consequences” on “property owners” for often “mundane” violations like “moving dirt.”
His own policy preferences led him to sharply narrow the scope of waters protected by the CWA. “Congress, the majority scolds, has unleashed the EPA to regulate ‘swimming pools and puddles,’ wreaking untold havoc on ‘a staggering array of landowners,’” Justice Elena Kagan wrote in a separate opinion that castigated Alito’s framing. “Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.”
Time and time again, this court has killed off public-policy decisions for reasons that appear driven by the court’s own sentiments rather than the law itself. Scalia, I noted recently, described the Voting Rights Act as a “racial entitlement” during oral arguments in a 2013 case. When the court heard a challenge to the Biden administration’s student-debt relief plan in 2023, Roberts questioned at oral arguments whether it was fair to provide relief to college students but not to a hypothetical small-business owner’s loan—and whether that perceived unfairness should factor into the court’s decision.
Nor is it hard to conclude that the justices’ policy preferences are warping their procedures. Starting with Roberts’ own intervention in an EPA case in 2016, the conservative justices have routinely used the shadow docket to freeze progressive policies and, especially in Trump’s second term, accelerate conservative ones. They spent the entire Biden administration affirming nationwide injunctions from federal courts in Texas, only to nix them as an option for lower-court judges a few months after Trump returned to power.
To describe the cumulative effect of the court’s rulings, especially in recent years, is to lose confidence in it. One cannot reasonably claim to be a non-political force in American life when habitually tilting the scales of American power in favor of the rich, the powerful, and the corrupt. Nor can you extract the court’s work from the extrajudicial forces that have shaped it.
Six of the court’s nine justices sit there because their predecessor timed their retirement to ensure an ideologically compatible replacement. Roberts himself owes his seat to a conservative legal movement that spent decades identifying potential nominees who could bring a particular ideological vision to the high court. They worked hard to elect senators and presidents to bring that vision about. Their labors have paid off.
Just last month, for example, Thomas gave an hour-long speech at a law school in Texas where he described American progressivism as an existential threat to our constitutional order and fundamentally incompatible with the Declaration of Independence’s values. He attributed to it the worst horrors of the 20th century, including the Nazi conquest of Europe and the injustices of Soviet and Maoist dictatorships.
His historically illiterate remarks validated every mote of skepticism that anyone left of center might have towards the high court. Indeed, Roberts’ challenge isn’t that Americans misunderstand the Supreme Court; it’s that a growing number of them understand it all too well. Americans are bound to obey the court’s rulings as a matter of law, but they are not obligated to respect or have confidence in an institution that does not respect them or the Constitution.
For many years, there were moderate and liberal court-watchers who defended the Supreme Court as an institution even as it drifted further and further to the right. I myself argued against adding more justices during the first Trump administration. Expanding the court, I reasoned, was a temporary solution at best that would not address the underlying factors that were fueling the court’s growing legitimacy crisis.
I have deeply regretted that stance ever since the Supreme Court held two years ago that presidents can commit crimes in office—a blasphemous and indefensible reading of the Constitution and a betrayal of our nation’s fundamental principles. Since then, I have concluded that expanding the court and breaking the conservative justices’ grip on American society is not only a necessity, but a moral imperative. Thanks to Roberts and his colleagues, I am far from alone.
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