Opinion | The Supreme Court has been leaking for years

The country is divided. There are those Americans furious that the Supreme Court will soon take away their right to have an abortion. And there are those Americans who are furious that someone leaked that the Supreme Court would soon take away the right to have an abortion.

Among Americans angry at the anonymous leak of Judge Samuel Alito’s draft opinion that overturned Roe v. Wade is the entire Republican Party. “Last night’s shocking violation was an attack on the independence of the Supreme Court,” Mitch McConnell, the Senate Minority Leader, said in a statement. a declaration issued after the leak. “This illegal action must be investigated and punished in the most complete way possible. The Chief Justice must get to the bottom of the matter and the Justice Department must file criminal charges, if appropriate.”

Senator Ted Cruz of Texas he told Fox News that “Leaking of the draft Supreme Court opinion will cause lasting damage to the integrity of the court and the independence of the judiciary.” And Sen. Mike Lee of Utah wrote that because the Supreme Court relies on “propriety and confidentiality” to do its job, it is “dangerous, despicable and harmful” to leak its deliberations to the public. The Supreme Court, he declared, “is not a political body.”

You could also have added that you have a right to privacy.

In any case, McConnell, Cruz, Lee and the rest of their fellow Republicans must be kidding.

The Supreme Court is, and has always been, a political body. That’s true of judges, certainly. Throughout the history of the court, most of them were chosen with political considerations in mind, to the point that many were politicians. It is true of the institution as well. The Supreme Court deals with political questions, not just abstract legal questions, and operates in the context of political conflict and political struggle.

And the Supreme Court, right now, is an avowedly partisan institution, an unaccountable super-legislature controlled by men and women selected from a cadre of conservative ideologues and bureaucrats, acting on behalf of the Republican Party and its allies. Whatever legitimacy it has retained, it has sacrificed in the drive to build the majority that appears poised to overturn Roe v. Wade and open the floodgates to harsh restrictions on the reproductive autonomy of millions of Americans.

When McConnell led the Senate Republican caucus in a blockade of President Barack Obama’s Supreme Court nominee in 2016 and then removed what was left of the judicial filibuster the following year to put Neil Gorsuch on the seat, he diminished the court’s legitimacy. . When those same Republicans looked beyond a credible sexual assault allegation to confirm Brett Kavanaugh in 2018, they again diminished the court’s legitimacy. And when, weeks before the 2020 presidential election, Republicans ignored their own rule from four years earlier — that an election-year vacancy “must not be filled until we have a new president” — to place Amy Coney Barrett in the bench in a hasty and botched process, once again diminished the Court’s legitimacy.

Moreover, despite their occasional protests (in a speech last year at the University of Louisville’s McConnell Center, Barrett insisted that the court “wasn’t made up of a bunch of partisan hackers”), court conservatives they have done almost nothing to dispel the view that their majority is little more than the judicial arm of the Republican Party. They use “emergency” orders to issue sweeping rulings in favor of ideologically aligned groups; invent new doctrines designed to undermine voting rights protections; and as we have just witnessed, they will allow nothing, not even 50 years of precedent, to stand in the way of a landslide ideological victory.

No discussion of the legitimacy of the Supreme Court, or lack thereof, is complete without mentioning the fact that its current composition is a direct result of our countermajoritarian institutions. Only once in the last 30 years, in the 2004 election, has a majority of the American electorate voted for a president who promised a conservative Supreme Court. The three members who cemented this particular conservative majority — Gorsuch, Kavanaugh and Barrett — were nominated by a president who lost the popular vote and were confirmed by senators representing far fewer than half of all Americans.

The typical response to this point is to say that we do not elect presidents by popular vote. And we don’t, that’s true. But Americans have always acted as if the popular vote conveyed democratic legitimacy. That’s why supporters of Andrew Jackson condemned the “corrupt deal” that put John Quincy Adams in the White House in 1825, why many supporters of Samuel Tilden were furious at the compromise that gave Rutherford B. Hayes the presidency. after the 1876 presidential election, and why George W. Bush’s allies were prepared to argue that he was the legitimate winner of the 2000 election should he lose the Electoral College but win a majority of the voters.

It matters whether a president has democratic legitimacy. Donald Trump did not. But instead of acting with that in mind, he used his power to pursue the interests of a narrow ideological faction, giving its representatives free rein to shape the Supreme Court as they saw fit. The court, then, is tainted by the same democratic illegitimacy that marked Trump and his administration.

Republicans seem to know this, and it helps explain why they’re so upset about the leak. They hope to include conservative ideology in the Constitution. For that to work, however, Americans must believe that the court is an impartial arbiter of the law, with each judge using reason to arrive at the correct answer on any question of constitutional interpretation.

The leak throws that out the window. The leak makes it clear that the Supreme Court is a political body, where bargaining and lobbying are as much a part of the process as pure legal reasoning.

If the court is a political body—if it is a partisan body—then an angry and unhappy public may decide to reject its rulings and its authority. That public may wonder why they should listen to a court that doesn’t listen to their opinion. And he may decide that the time has come to reform the court and dismantle the ill-gotten majority that the Conservatives worked so hard to create.

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