Since Dobbs, the liberal justices have returned again and again to this theme. In remarks to the American Constitution Society, Justice Sotomayor urged her audience not to lose “faith in the court system,” expressing hope that the justices could “regain the public’s confidence that we — as a court, as an institution — have not lost our way.”
Similarly, speaking to an audience at Northwestern University Pritzker School of Law, Justice Kagan warned that the court’s legitimacy was at risk if its decisions were seen as an “extension of the political process.” The Supreme Court must “act like a court,” she remarked, as if the gravest sin of the law is when it seems like politics instead. The court fails in this regard, Justice Kagan explained, when the body departs from precedent (except in “unusual circumstances”) or proceeds by “leaps and bounds” rather than “incrementally.” In saying so, she seemed to ally herself with her colleague, John Roberts, whose approach to judging has drawn widespread praise from liberal legal commentators for moving the law right steadily but less quickly than his fellow conservative justices.
This theme of philosophical inconsistency has continued into the current term, with the court’s newest member, Justice Jackson, receiving near-universal acclaim from liberals for her use of constitutional history in support of affirmative action and voting rights. During oral arguments for both sets of cases, Justice Jackson’s forceful insistence that the 14th and 15th Amendments accommodated race-conscious remedies after the Civil War worked to show that the stated commitment to originalism among right-wing justices was at odds with their political agenda of inventing a “colorblind” constitutional law.
Pointing out such hypocrisy is fair and even sometimes effective. The most striking feature of all this liberal dissent, though, is how fundamentally conservative it is. Bucking up an institution in crisis precisely because it continues to fail liberals is to choose not to do other things in dissent. So is owning conservatives by suggesting that their interpretive methods could serve liberal ends if there were more liberal votes.
These appeals by the justices to institutional legitimacy are part of a broader conversation about judicial reform that is both more heated and more serious than it has been in nearly a century. Democrats remain divided on what (if any) reforms are needed. But a consensus seems to be emerging, at least among progressives, that it is necessary and appropriate to treat the justices as political actors, and increasingly, to limit the court’s authority given its status as an undemocratic and historically reactionary institution.
Among the liberal justices, by contrast, reform is acknowledged only as something to pre-empt through exercises in self-restraint. They have locked horns with their reactionary colleagues while agreeing with them that the Supreme Court should remain the arbiter of its own enormous power to do good or ill — even though, as Justice Sotomayor disarmingly pointed out during the Dobbs oral arguments, “There is so much that is not in the Constitution, including the fact that we have the last word.”
Similarly, they have invoked the spirit of the arch-conservative Justice Antonin Scalia when it serves their purposes — in Dobbs, to doubt the majority’s reassurance that canceling abortion rights would not put other rights on the chopping block. Yet the liberals have not adopted a democratic attack on judicial power that he developed. At stake in one case, he remarked in dissent, was “the power of our people to govern themselves, and the power of this Court to pronounce the law.” Nor was he above issuing warnings when he thought the problem was the other side’s self-aggrandizement at the expense of self-rule. “I write,” he began another incendiary dissent, “to call attention to this Court’s threat to American democracy.” Justice Scalia’s hypocrisy was that he made such claims selectively. But today’s liberals do not make them at all.