The supreme court is a messy institution. Its six conservative justices are mired in infighting over both the pace of their shared ideological project of remaking American law and life according to rightwing preferences, and over their preferred methodological course for doing so. Their squabbling is not helped by the fact that two of them, Clarence Thomas and Samuel Alito, keep embarrassing the court with gauche public scandals, which draw attention to the court’s legitimacy crises like a vulgar flag waving above One First Street. For their part, the liberals are exhausted, impotent and at times apparently publicly despairing. Their dissents have sometimes taken on tones of exasperation and peeved sarcasm, as if they’re turning to the country and asking: “Can you believe this?” Their most senior member, Sonia Sotomayor, recently told an interviewer that over the past several terms, since the court’s conservative supermajority was sealed under the Trump administration, she has sometimes gone into her chambers after the announcement of major decisions and wept. She says she anticipates having to do so again: in one recent dissent, she warned ominously about the future of gay marriage rights.
The court’s partisans like to point out that it controls neither the military nor the federal budget; the court’s legitimacy, they say, comes merely from the fact that people believe it to be legitimate. But increasingly, many of them don’t. The court’s approval rating remains at record lows, and the justices’ conduct over the past several years has punctured the mystique of scholarly seriousness that the institution once pretended to. They don’t seem like wise legal scholars, carefully and dispassionately deliberating the merits of competing interests and claims. Instead, they seem more like a bunch of bumbling partisan hacks – perhaps just more cynical and less clever than the average Republican operatives stuffed into suits throughout DC.
