How much do the supreme court’s six Republican justices care about what Americans think of them? The question haunts most accounts of the supreme court, an anxious subtext detectable in every discussion among court watchers and pundits when the court agrees to hear a specific case and after every oral argument.
There is a safe assumption – borne out in the conservative supermajority’s decisions, in their statements and in their pre-court careers – that they are all personally inclined to take the maximalist conservative route. If they were unconstrained by other factors, like public opinion and the legitimacy of the court, one gets the distinct sense that they would do the worst thing possible: reverse the most social progress, cause the most suffering, undermine democratic representation as much as possible and accrue as much political power as they can to themselves. What stops them, or slows them down, is not an instinct for moderation, or a sense of respect for the other branches, or the law. What slows them down is a caution about public opinion, a fear of what will happen if their institution is delegitimized in the minds of the people – what slows them down, that is, is something like shame.
