As federal law requires, the October 2020 term of the U.S. Supreme Court (OT20) began at 10 a.m. EST on Monday, October 5, 2020, and ended at about the same time on Monday, October 4, 2021.
Yet OT20 really began two weeks early, when Justice Ruth Bader Ginsburg died on September 18, 2020. It then came to its defining moment on September 1, 2021, when, in an unsigned order, the Court permitted the state of Texas to defy its own precedent and block an untold number of women from obtaining abortions to which, under the Court’s case law, they were fully entitled.
Ginsburg’s death, and the bizarre, unexplained decision in the Texas case, signified to the world that the Court had entered a new era—one of conservative dominance, radical legal uncertainty, and stunning indifference to the public the justices nominally serve.
During OT20, as the Court made decisions that impacted religious freedom, public health, workplace safety and labor relations, the detention of immigrants, the right to vote, and the outcome of the presidential election, it did not show its face to the public once. Its oral argument sessions, heretofore open to members of the Court Bar, reporters, and members of the public willing to stand in line, were conducted remotely, with audio of the arguments available on C-SPAN. That skittishness in the face of the COVID-19 pandemic, in an institution whose median age is 66, is understandable.
Less understandable is the fact that this Court has made many of its most important decisions in complete secrecy, without oral argument, full briefing, participation by amici, and even warning to the public. In 2015, the University of Chicago law professor William Baude dubbed this second, secret Court “the shadow docket,” to signify the Court’s careful concealment of its workings. The emergency shadow docket, as the University of Texas law professor Stephen Vladeck has noted, exploded during the Trump administration, as the increasingly conservative majority stepped into dozens of lower-court cases to award a win to the administration without bothering to hear the challenges out. The shadow docket has existed for decades, to be sure. But never before have so many consequential national issues been resolved in brief, often unsigned orders, leaving the public in the dark as to what new doctrine is being created.
In September 2021, the Court announced that the first four sessions of OT21, at least, would also be conducted out of public view; although lawyers presented oral argument in the chambers, and the Court press corps was seated in the gallery, the Court Bar and public seats were vacant.
Life is a treasure house of metaphor, and the Court’s marked turn toward the tenebrous furnishes a poignant one. One understands the need to protect the justices and Court personnel from COVID. But the fact remains that the public has not seen the assembled justices of the Court since February 2020. Some justices attended Ginsburg’s funeral, a few showed up for the presidential inauguration. But never have they been seen, together, doing their job. In that time, the Court has become a new institution—not simply in terms of its personnel but also in its conception of itself, its internal operations, and its assumed role in American life.
In the late summer of 2021, Justice Stephen Breyer, the Court’s senior moderate-liberal, published a slim volume, The Authority of the Court and the Peril of Politics, solemnly explaining that neither the media nor the public should refer to justices by partisan affiliation or characterize them as “liberal” or “conservative.” Above all, he wrote, there must be no more talk of court reform, addition of new justices, or term limits. If that bit of mental hygiene is not observed, he fretted, “the public’s willingness to respect its decisions—even those with which they disagree, and even when they believe a decision seriously mistaken”—will evaporate, and with it, “the rule of law itself.”
And three weeks before the beginning of OT21, the newest justice, Amy Coney Barrett, told a Kentucky audience, “My goal today is to convince you that this Court is not comprised of a bunch of partisan hacks.”
The intended reassurance was somewhat weakened by her odd choice of words. After all, who said it was comprised of partisan hacks? And the delivery of her protest at an event at the McConnell Center at the University of Louisville—a center named for Mitch McConnell, the Republican senator most responsible for the brutal hypocrisy of jamming then Judge Barrett’s nomination through the Senate a week before the 2020 election—raised the “huh” factor immeasurably. McConnell, in fact, was present at the event and introduced her, promising listeners that she does not “legislate from the bench.” To further highlight the nonpartisan nature of the event, McConnell also pointedly noted that Barrett is from “Middle America.”
Part of Barrett’s complaint was that “the media” does not properly interpret the Court: “The media, along with hot takes on Twitter, report the results and decisions,” she said. “That makes the decision seem results oriented. It leaves the reader to judge whether the Court was right or wrong, based on whether she liked the results of the decision.” She was speaking to the nation through the media, as the McConnell Center did not allow broadcast or recording for broadcast.
Since 2016, American politics has seen a number of star turns in the art of public gaslighting, blandly indignant insistence that all loyal Americans must now agree that two plus two equals five. Yet for sheer impudence, few of them, in my view, equal this attempt by the supposedly saintly Barrett to convince adult Americans that the Court is not partisan. And none has done so while standing with the man who has made it his life’s work to destroy any vestige of nonpartisan character for the Court—and create in its place an institution controlled by and loyal to the Republican Party. The ascension of Barrett, in its brutal ham-fisted hypocrisy, marked the successful end of that campaign. Her willingness to say these words in this setting tells us, I fear, all we need to know, not only about her intellectual honesty but also about her contempt for the American public.
Either Barrett thinks the public will believe what she says, or she is taunting her political enemies by reminding us that she and her colleagues can do whatever they want—babble any foolishness they wish—free of serious concern for public accountability.
The new post-Trump Court, in short, is a very different institution than the one that existed until February 2016. At that time, Justice Antonin Scalia’s death opened the door for McConnell’s coup de coeur. McConnell managed to block the Senate from even considering Judge Merrick Garland, President Barack Obama’s nominee to replace Scalia, holding the seat open so that Donald Trump could promise to name a justice who would “automatically” vote to overturn the Court’s abortion-rights precedents. The following year, after Justice Anthony Kennedy announced his retirement, McConnell forced through the Senate confirmation of then Judge Brett Kavanaugh, a Republican partisan credibly accused of attempted rape—an accusation that was defused by what we now know was sort of Casablanca-level scrutiny by the Federal Bureau of Investigation. Republicans had been discreet in their response to one of his public accusers, Christine Blasey Ford—until Kavanaugh was confirmed. Then President Trump rolled out accusations that she was a liar, and that her supporters were man-hating radical feminists. “Think of your husbands. Think of your sons,” he told Republican women. The sexual assault accusation, in the new Republican politics, would now be a net positive for the accused. A vote for Judge Kavanaugh thus became a vote to protect men from the malice of women; and the confirmation of now Justice Kavanaugh almost certainly represents another step toward the “automatic” rollback of abortion rights.
The third act of this tragedy began in September 2020, when Ginsburg, the Court’s senior and most eloquent liberal, and a feminist icon for millions of the same young women who had seen the Senate’s response to Kavanaugh, died of pancreatic cancer. The McConnell machine immediately insisted that, regardless of what he had said in 2016, Trump must name, and the Senate must confirm, a new justice within days of the election—acknowledging with a smirk that the rule for Republican presidents in election years was, well, different from the rule for Democrats. “Fill that seat!” crowds chanted at Trump rallies, while Trump unveiled the nomination of Barrett, a radically conservative Catholic, an opponent of abortion, and an apparent repudiation of all that Ginsburg had stood for. Barrett was confirmed to the Court on October 26, 2020—eight days before Democrat Joe Biden won the White House from her patron by a margin of 7 million votes.
Many Republicans seemed to expect the newly renovated Court to step in and reverse those 7 million votes. So distorted had the Court’s nature and role become in national politics that, when the Court refused to overturn the clearly valid election results in four swing states, it seemed like a signal of moderation.
Meanwhile, the “shadow docket” ground on, although, after the change of administration, with a slightly different tone. Over and over, while Republicans controlled the White House, the Court had stepped in with “emergency” orders upholding presidential authority, often issued in the dead of night without oral argument and only the sketchiest of briefing. As the University of Texas’s Vladeck noted, the Trump administration won 28 emergency orders from the Court on issues ranging from executive privilege to the funding of the proposed border wall. After the turnover, the shadow orders overturned blue-state pandemic health measures, upheld religious rights against civil rights protections, blocked a presidential order that suspended evictions for the duration of the pandemic emergency, ordered the administration to reinstate Trump’s “remain in Mexico” immigration policy—and used the gauzy claim of a procedural quirk as an excuse to allow Texas to shut down almost all legal abortion within its borders.
This is the Court that the nation was permitted to catch the faintest glimpse of on the first Monday of October 2021. Who are these people behind the curtain, and what does their ascension mean for the nation and the law? And what does the new regime at 1 First Street, NE, portend for the Constitution?
Several aspects of that question concern progressive lawyers. First, many need to understand the new arguments and doctrines the Court has shaped so far and must, in the years ahead, attempt to apply them as law to cases involving constitutional rights and structures. Second, the politically engaged members are desperate to understand what the Court’s new makeup means for the long-term health of our Constitution and our democracy. And third, all of us need to understand what we can make of the psychology of the new majority on the high court, and of its aspirations and likely eventual achievements, so we can be ready with an appropriate response.
I spent 10 years watching the Court’s behavior from the press gallery. (Barrett is the only current justice whom I’ve not seen on the bench.) I have been transfixed by what each of them—especially the three Trump justices—has gone through during the years since 2016. It beggars belief to suggest that these experiences have not changed them. What has that journey done to them?
Justice Neil Gorsuch, nominated in March 2017, knew when he accepted Trump’s nomination that he was taking what many (with good reason) regarded as a “stolen seat,” kept from Merrick Garland by the rawest of political trickery and deceit. Indeed, news reports indicated that Gorsuch’s first phone call, after accepting the nomination from Trump, was to Garland. What exactly was said isn’t recorded, but the conversation cannot have been entirely comfortable. Many federal judges are friends, but friends can be both professional rivals and ideological adversaries, and it’s safe to say that Garland’s hypothetical conduct as a justice would have been very different from Gorsuch’s actual behavior. Gorsuch was accepting a seat that Garland had aspired to for much of his career, under circumstances that made clear that he would never attain it. By fair means or foul, Gorsuch won; he accepted a nomination from a president that both men knew to be not only vulgar, corrupt, lawless, and mendacious but also ignorant and, not to put too fine a point on it, let’s-put-bleach-in-our-veins stupid.
Gorsuch tried to signal that he would be independent, telling senators that Trump’s attack on sitting judges was “demoralizing and disheartening”—a statement that, by news reports, enraged Trump and led him to consider withdrawing Gorsuch’s name. Future nominees, we can note, did not publicly break ranks with Trump, regardless of his antics. In authoritarian regimes, it does not pay to cross the Boss.
At any rate, Gorsuch absorbed enough of the take-no-prisoners Trump approach. He was specific and dramatic in proclaiming that, had Trump asked him to overrule Roe v. Wade, he would have walked out the door (without confronting the president’s promise that his nominees would “automatically” do that without being asked). In every other area, he avoided mistakes by patronizing the senators, mischaracterizing their questions, and discussing doctrine in impossibly vague terms. When, for example, former Democratic Senator Al Franken asked about the Court’s turn toward compulsory arbitration in consumer and employment disputes, Gorsuch responded that Congress had passed the Federal Arbitration Act—a historical fact that no one disputed. When Republican Senator Ben Sasse asked a question about the “originalist” philosophy, Gorsuch told him that “the Founders really were amazing. If you ever go to Philadelphia, you have got to go to Independence Hall and the National Constitution Center there and see how it happened.” That a Yale-trained American historian like Sasse might not need this advice seemed not to matter—and the answer ate up time.
Brett Kavanaugh’s psyche was more fully displayed in his confirmation hearings in 2018. Having presented himself as a paragon of virtue and public spirit, he was confronted with a credible accusation of sexual assault by an acquaintance from his high school years, the Stanford professor Christine Blasey Ford. The paragon’s response was, in full view of the world, to scream, weep, whine, and eventually threaten vengeance against anyone who had obstructed his march to a seat he clearly regarded as his by right. Polls showed that a plurality of the American people believed Ford was telling the truth. But Kavanaugh accepted confirmation and traveled to the White House for a ceremony at which his patron, Trump, with members of the Court in attendance, excoriated in partisan terms all those who questioned Kavanaugh’s virtue.
Finally, Amy Coney Barrett, also presented in the snowy robes of piety, accepted a nomination procured by truly ostentatious partisan hypocrisy and tendered only days before a presidential election that most observers expected Trump to lose. She brought her family to the White House to appear at a partisan announcement of her nomination—without masks or precautions against COVID infection of herself, her family, or the national leadership in attendance. (The Boss disliked masks.) At least 11 cases were later reported among those who attended. Once confirmed, she—voluntarily and unmasked—attended another celebration in the Rose Garden.
I will accept the protestations of virtue and kindness proffered by each of the three nominees and their supporters. But, to elaborate on a metaphor proposed by the Greek philosopher Heraclitus, time does not change only the river. The person who stands on one riverbank is by definition not the person who, having crossed the river, will look back from the opposite bank. All had aspired to the high bench since they were young; did any of them really want, in full view of the nation, to accept the ring of power from the Dark Lord? How did the experience of bending the knee to President Donald Trump, of (in two cases) moving into vacancies that should not have been filled by Trump, of showering praise on the odious president and avoiding any statement he might dislike, of profusely thanking him, of (in Barrett’s case) exposing herself and her family to a deadly virus, change them inside? One can imagine that sustained public hypocrisy might generate a core of hollowness and corrosive self-doubt. Inner wounds might sometimes breed a new compassion; but just as likely would be a deep, Kavanaugh-level rage directed at perceived enemies to neutralize any inner self-accusation.
These three Trump justices are joining a Court that is already volatile. Rage, after all, is at the core of much contemporary conservatism—rage at perceived slights by liberals and imagined oppression by changing gender and religious norms. Justice Clarence Thomas had, after his contentious confirmation to the Court, told friends that his purpose in continuing to serve was to torment liberals. Justice Samuel Alito, whose confirmation was a walk in the park by comparison, nonetheless recently revealed a long list of grievances at those who do not share his political and religious views. Both Thomas and Alito spent the last term giving speeches or penning dissents that were curdled by fury, at imagined opponents of gun rights, religious liberty, and more “culture war” complaints. Add to this mix three new justices, and turn the resulting tribunal loose on a bitterly divided country, and the result is an explosive one.
With that background, we reach the question of legitimacy. Breyer and Barrett are concerned with the Court’s proper place in the constitutional system. We should all be. The institution has been at best wounded and at worst poisoned by the successful effort to capture it. This is a problem for the nation as a whole, especially as we slide into the most serious test of American democracy since the Civil War. For the past half century and more, Americans have thought of the Court as one of the guardrails of democracy. Will it play that role in the near future, when we face efforts at voter suppression and election rigging by state legislatures?
Alas, that seems hard to imagine. And if the Court becomes a willing partner in the ongoing authoritarian project the right wing has embarked on, it might gain power, it might further the social and economic outcomes that its members favor, but it will lose its soul; it will have forfeited any claim to respect as a tribunal where power and rights meet the Constitution and the law. Justices care about their place in history; to preside over the eclipse of American democracy would, to paraphrase what President Abraham Lincoln said during another crisis, light them down in dishonor until the latest generation.
The question then becomes whether anything can be done by “we the people” to bring legitimacy to a body teetering on the verge of going rogue, of becoming a wrecking ball striking at the foundations of self-rule. Proposals have come forward for “court reform”—at the baldest level, a simple increase in the number of justices, and at a more sophisticated level, proposals to reconfigure the Court as an appellate court with rotating judge panels that include lower-court judges sitting by designation, to tap lower-court judges for periods of service as justices, or to create a system of staggered 18-year terms that would guarantee both fresh blood regularly and two Court appointments in every four-year presidential term. All are worthy ideas, and worthy of study. They will face objections—indeed, have already been criticized by Breyer in his 2021 book—that they will compromise the Court’s integrity and legitimacy.
The answer to that objection is that it is not possible to compromise a Court that has already compromised itself. The Court’s problem is not preserving its legitimacy—it is regaining it, a more daunting task. And the participation by the people in the reworking of this wounded tribunal, by a sober consideration of the Court’s makeup, procedure, jurisdiction, and tenure, is perhaps the surest way to achieve it.
That debate is essential, though some voices will counsel that progressives should avoid this debate. The two parties in Congress are almost evenly balanced; court-packing (or anything that seems to be court-packing), they fear, will set off alarm bells among the public that Democrats are anxious to avoid. And considering the efforts under way in red states to purge the electorate, corrupt the vote-counting process, and gerrymander Democratic districts, this relatively feeble Congress might mark the high-water point of Democratic influence for a generation or more. That possibility—that corrupted institutions might entrench one-party rule—requires progressive voices to respond now, to lay out to a candid world the mammoth stakes in the partisan befouling of the Court.
Biden, of course, has named a Presidential Commission on the Supreme Court of the United States, staffed with luminaries from the practicing bar and the legal academy. The commission’s charge is “to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” Curiously missing is any mention of producing proposals, and we should expect none. The commission might be viewed as having, on its first day, accomplished its main task—which was to give candidate Biden a sound bite with which to escape the repeated suggestion by Trump that Biden would “pack the Supreme Court.” Indeed, the mere existence of the blue-ribbon panel has become the Biden administration’s response to virtually any action taken by the Court.
Another route to renewed legitimacy for the Court is popular mobilization for statutory or constitutional changes. It’s routine to say that this would be impossible; but history shows us at least one occasion in which such a movement succeeded in making a major change in the Constitution. Indeed, the movement for the popular election of senators managed to make the notoriously stubborn Senate in essence vote itself out of existence by formally proposing what became the Seventeenth Amendment, which instituted the election of senators by popular vote rather than legislative appointment. That movement took 20 years to achieve its goal; but a public that does not at least begin to agitate this subject will never reach anything like that point. Their political leaders should not shy away from the issue. And as the Court dismantles important precedents, popular response—in political outrage, in public criticism, and in peaceable assembly to seek redress of their grievances—is important. Public response to its actions has, over time, exercised a profound check and influence on the Court.
There is a final route that could return the current, compromised Court to a constitutional role in which the people have confidence. That route might be summed up in a few words from Vito Corleone, the fictional Mafia don of the classic film The Godfather. Corleone’s godson, a popular singer, complains that a prominent movie producer is blocking his career. “Oh, Godfather,” he says, “I don’t know what to do. I don’t know what to do.”
Corleone slaps his face. “You can act like a man,” he says.
If the new majority on the Court wants the public to respect it, then it can earn that respect by acting like a Court. Signs so far are that the new majority will act with only token respect for precedent and contempt for transparency. Indeed, the stealth decision to allow Texas to gut abortion rights suggests more than that—it suggests outright lawlessness. But the Court could turn back. If the justices were to show less eagerness to achieve policy goals of the conservative movement, to mow down precedents in high-profile areas such as reproductive rights and gun safety, to stack the economic deck against workers and consumers, and to impose political rules that favor the Republican Party, the people might begin to trust them. They’d have reason to.
But there is one sure way for the Court not to regain that trust—and that is the Breyer-Barrett approach of lauding the justices’ own grandeur and berating both the public and the press for not affording the nine of them the blind deference they are due. This insult to the nation’s intelligence simply will not do—and so far, that seems to be the only approach the new majority is taking.
This article is an abridged adaptation of a piece the author originally published in the American Constitution Society Supreme Court Review.