An Open Letter to Chief Justice Roberts

Dear Chief Justice Roberts:

I was unnerved to see your disappointingly naive comments at the Bench & Bar Conference for the U.S. Court of Appeals for the 10th Circuit. You suggested that it is a mistake for the public to judge the Court’s legitimacy based on a disagreement with one of its opinions. I agree with that sentiment, but it is wholly non-responsive to the crisis facing the Court today.

That crisis is obvious even to the most casual of observers: no serious person believes that the recent departures from the Court’s precedents are the product of nonpartisan judicial exegesis as opposed to partisan opportunism.

Whether that is a comfortable observation or not, it is the truth.

Those departures are owed first to the Court’s rapidly changing composition egged on by a wildly successful conservative judicial movement. To see the Court turn on a dime, to overrule precedent laid down and later upheld by so many colleagues, through the invocation of vacuous phrases like “egregiously wrong,” leaves no question as to why the law today is different than it was yesterday.

To exacerbate matters, the majority of the Court’s Justices were either appointed by Presidents who failed to receive a majority of the popular vote or confirmed by Senators representing a minority of the population (and, recently, both). Worse, one was placed on the Court through partisan gamesmanship marked by artificial delay. In short, the Court is, down to its bones, more of an anti-democratic institution today than ever before.

Of course, this is not to be laid at your feet. You control neither the appointments process nor the Senate calendar nor the arc of history. But to chalk up the public’s historic discontent with the Court at present to mere disagreements with its opinions — as you did recently — is to willfully blind yourself to the current challenges that you and the Court face.

Nor are your colleagues doing you any favors. One can hardly blame the public for viewing the Court as just another partisan institution when Justices repeatedly debase themselves in public. By way of example only, I point here to Justice Alito who has made a habit of making provocative partisan appearances, most recently after the Court’s decision in Dobbs where he mocked the much of the free world’s reaction to that case.

The fact is this: Justices are people first and people have biases; they are not disinterested umpires. And, as it turns out, many of the Justices currently on the Court were picked precisely because of these biases, which, at present, are decidedly out of touch with the mainstream of the United States. So it should hardly be surprising that the public’s view of the Court today is what it is.

In short, the problems the Court faces are not ad hoc ones based on any single decision but rather systemic ones. The solution to the Court’s current crisis — and, yes, it is a crisis — must themselves be systemic. While I hope those reforms come, I would ask in the meantime that you not shame the public for coming to the completely logical conclusion that the Court at present is beyond saving.