by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court is well aware of its weight. Its opinions and dissents and the public appearances of its justices are filled with demonstrations of self-awareness about its power and influence and the perceived quandary of the court’s existence.
In testimony before the Senate Judiciary Committee in 2011, Justice Stephen Breyer posed this question about the Supreme Court: “We live in a democracy, and we do decide matters that will affect you, so why should nine people who are not elected have that authority?” It turns out, he offered a very compelling answer over the hearing’s course, one that was very protective of his institution as a necessity and very insistent on its independence.
Perhaps his view has changed, but at least in 2011, Breyer rejected the implications of a cynicism like that recently expressed by Politico’s John Harris. In a recent column, Harris quotes Chief Justice John Roberts, who, in 2018, said in response to none other than President Trump, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Harris’s response is, “Very nice words. But what planet is Roberts on?”
These are the current conditions. This is the current sentiment, shared among Democrats and others in the Democratic-aligned activist class — the high court is a court of political actors. Harris doesn’t resolutely call the court, or the process of confirming Amy Coney Barrett, “illegitimate,” as so many others have done, but his words are still foreboding: “The Supreme Court is begging for a legitimacy crisis.” The court has responded to that charge, or at least the threat of it, many times before.