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stopdiggin's Journal
stopdiggin's Journal
May 23, 2023

Public Criticism Might Be the Best Way to Reform the Supreme Court

solid points. worthwhile perspective. good read.

sorry if there is a paywall issue (I don't actually know)
and I will provide as much 'representative' as possible

In an interview last month, Justice Samuel Alito complained about excessive criticism of the Supreme Court. To him, these criticisms have not identified discrete problems to be solved but rather represent bad-faith efforts by critics to do nothing more than give the public a “reason to question our legitimacy.”

The not-so-subtle implication of what has become a regular talking point for conservatives is that the court isn’t — and shouldn’t be — responsive to public criticism. And if that’s true, it must follow that public criticism doesn’t serve a legitimate purpose, especially if it is unlikely to spur meaningful reform from Congress.

Yet this attempt to delegitimize public criticism fails at its inception. Even if reform from Congress is not imminent, we ought not drop the focus on another potential vehicle for reforms — the court itself.

There are both historical and recent examples of how the court, in response to mounting public pressure and criticism, has changed its ways, examples that underscore the value and opportunities provided by continued public pushback today.

Perhaps the most famous example of the court’s responding to public criticism came in 1937. After the 1936 election, in which President Franklin Roosevelt ran as much against the court — which was blocking economic measures meant to respond to the dire conditions of the Depression — as against Gov. Alf Landon of Kansas, Justice Owen Roberts made “the switch in time that saved nine,” a shift that historians debate was either because of Roosevelt’s proposal to add six seats to the court or, more generally, in response to the broader atmospherics of the president’s re-election. Either way, the court’s shift was precipitated by substantial public backlash against its recent behavior, and it opened the door to an era of greater judicial deference to economic regulation and greater judicial protection of civil rights.

- snip - In the past 18 months, we’ve seen a similar — if subtler — shift in the court’s behavior that again closely correlates with public criticism and pushback. In this case, it has been related to how the justices issue unsigned and (usually) unexplained orders concerning applications for emergency relief, on what Will Baude, a University of Chicago law professor, first called “the shadow docket.”

To underscore that, in spring 2022, in an emergency relief case involving environmental regulation, Chief Justice John Roberts strikingly joined a dissent by Justice Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, emphasizing concerns about the procedural shortcuts the other conservative justices had been taking.

Since then, the court has intervened far less often and in ways that have looked far less partisan even when it has granted emergency relief. - - snip -

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