Federal courts have made a lot of news lately. Most of it is not good.

We ask a lot of our courts, but life was better when America did not know the names of federal district judges like Jeb Boasberg, Tanya Chutkan, Juan Merchan, Arthur Engoron, Amir Ali, Amy Berman Jackson, and so many others.  The present judicial landscape is plagued with absurd rulings and injunctions by carefully selected lower court judges who behave like Bluesky authors in black robes.  Whether it is ending USAID to deporting violent gangs to firing members of his own administration, to self-funding a White House ballroom and power washing the Eisenhower executive building, district courts have tried to stop even the most banal actions simply because of the name of the man with the executive pen.  A Republican president cannot polish his shoes without some climate alarmist policy group suing him over pollutant chemicals in the polish and a district court halting the stroke of the brush.  The legitimacy of any institution, let alone that of the half branch that is the Article III Judiciary, cannot survive this.

Life was also better when the Supreme Court of the United States did not require a plumbers unit.

Leaks from the Supreme Court appear new and unprecedented to many.  Unfortunately, they are not.  They recall an old, mostly forgotten shadow of America’s past.  To be sure, at no point in that past did any leak from the Supreme Court create an instantaneous terror campaign against the majority justices at their homes and neighborhoods, as well as at least one assassination attempt against one of them.  The leak of the penultimate opinion in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) was truly without precedent, and it is all the worse still that its perpetrators have not been held to account, nor are expected to be.  But the fact that this happened in the first place is an ominous sign of the present, and its own rhyme of a dark stanza in history.

In 1857 – the Antebellum Era – before President-elect James Buchanan assumed office, he received real-time updates from one of the members of the Supreme Court (Justice Robert Cooper Grier) about the ongoing deliberations and opinions in the now-notorious case that is Dred Scott v. Sandford, 60 U.S. 393.  In that case, the Supreme Court held that a black man, even a free one, can never be a citizen of the United States, and thus had no standing to sue in federal court.  But rather than merely dismissing the case outright without deciding any other questions, the Court held further that even if he was free, Dred Scott was nothing at all – not even a citizen of a state – and as such federal diversity jurisdiction could never be extended to his circumstances.  And then, again, rather than just dismissing the case from there, the Court went even further and held that the Missouri Compromise of 1820 was unconstitutional because (somehow) Congress could not ban slavery in the territories. Chattel slavery, therefore, according to the Supreme Court, was an absolute right under the Constitution with which no one could interfere.

It should go without saying that this decision was insane.  Not only is Dred Scott the most morally bankrupt case ever decided by the Supreme Court; it is, from a purely legalist and structuralist position, an unsalvageable mess.  In a single decision, the Supreme Court destroyed the diversity jurisdiction of federal courts, the power of Congress to make laws affecting the territories, and the legitimacy of the Supreme Court itself, with its mighty Chief now standing as the land-wide gatekeeper for the rights of the enslaved states and territories to enforce their property rights against any federal laws or interferences of any kind.  The political violence and demographic warfare that the South had been waging in the Kansas and Nebraska territories from 1854 onwards had now effectively been blessed with total constitutional legitimacy.

And President Buchanan knew about it before it released.

Not only did he know about it; Buchanan wrote to both Justices Grier and John Catron to persuade them to join Chief Justice Roger Taney’s majority opinion, and lock arms with the southern majority.  Since the case, and the nation-affecting questions at its core had received so much attention, when Buchanan was asked about his views as to the question of slavery and co-existence of North and South, he deferred to the Supreme Court and said the he would follow the decision, whatever it would be – as if he did not know.  It is no coincidence, then, that the decision arrived two days after Buchanan’s inauguration.  And if you are looking for a true turning point in American history, it was the Dred Scott decision with SCOTUS leaking like a sieve in reaching it, not the election of Abraham Lincoln three and a half years later, that made war inevitable.

Sadly, this is not the only case where leaks from the Supreme Court affected the separation of powers and the checks and balances of government.  During the 1930s-40s, Franklin Roosevelt was often notified of forthcoming decisions in the Supreme Court, and was able to prepare for them accordingly.  It probably helped that by the time of his death, he had appointed all nine members.  More than that, if ever he wished one of his own appointees removed from the Supreme Court, Roosevelt would put them right back into his administration, as was the case with the short-lived Justice James Byrnes.

That same era was also one of irascible divisions on the upper federal bench.  Justice James Clark McReynolds was known for making anti-Semitic outbursts against his Jewish colleagues like Brandeis and Cardozo.  Justice Frankfurter made an enemy of nearly every single colleague during his nearly 24-year tenure on the Court. Robert Jackson and Hugo Black, both Democrats appointed by Franklin Roosevelt, had a blood feud between them that even sometimes made international headlines.

This, of course, was another antebellum court of sorts, even as it, in some ways, did the mirrored opposite of what Chief Justice Taney did in Dred Scott.  During the New Deal the emerging majority of that Court all but abdicated its power of judicial review, surrendering its jurisdiction to the growing administrative state, as well as the several states themselves and their vaunted “laboratories of democracy.”  And until 1952, there was almost no executive order, wartime rule, or restriction that the Court would not rubber stamp, even if farmers like Roscoe Filburn were being fined for exceeding their quotas or if a hundred thousand people, Japanese and German, in good standing under American law were being forcibly detained in camps with no due process rights.

If you think that the Supreme Court’s political divisions today are a problem, you may take comfort in knowing that once upon a time, it was significantly worse.  But it is of no comfort whatsoever to see the behavior of many federal judges, at both the lowest levels and on the Supreme Court itself, eerily mimicking some of the darkest days of the past.  The difference between grabbing power your institution does not have and surrendering power your institution does have may seem huge, but it amounts to the same cowardice and forfeit of legitimacy to meet the political moment.

So is the Supreme Court today legitimate?

A complicated question that my friend and law professor attempted to answer six years, two new members, and at least one assassination attempt ago.  The general gist of his piece (well worth reading) is that the Supreme Court, by its very nature, cannot help but lie downstream of at least some social, cultural, and political trends, even as it exists to operate above or outside of them.  As these trends intensify, the Supreme Court will be asked, and, effectively, cannot refuse, to hear and decide difficult and divisive controversies that it would probably prefer not to.  A legitimate court is neither too shy nor too eager to do the work, and, according to Professor Greve, should proceed first and foremost through the prism of constitutional structure, preserving the separation of powers, and otherwise tread lightly in cases where there is great “moral urgency” but little law.

This analysis, however, as good and complete as it was in early 2020, misses two components: (1) legitimacy according to whom? and (2) legitimacy compared to what?

Certainly if the Supreme Court had followed Professor Greve’s advice in 1857, Dred Scott would never have been decided the way it was and with the leaks that preceded its release.  But in that case, the Supreme Court destroyed its own legitimacy by going out of its way to intrude on a national public controversy to declare a final ruling that, in reality, only intensified the scope and severity of the disagreement.  The Supreme Court, on the issue of abortion, repeated that terrible history in 1973 when it decided Roe v. Wade, 410 U.S. 113, and then again when it re-affirmed the same in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  In these cases, the Court made the grave mistake of believing that it was putting an issue to rest.

But if you put those (comparatively) easy cases aside, who decides whether the Supreme Court is legitimate?  Is it a political party that finds itself on the losing end of a confirmation war?  If so, what the Democrats might say today are no different than what Republicans said in 1987 when Robert Bork’s nomination to the Court was defeated after a character assassination campaign that lasted for months.  Is the Supreme Court itself illegitimate because of the questionable procedures or actions in the other branches that elevated some of its members to it (or didn’t)?  William Marbury might have had something to say about this, but the Court had no jurisdiction to hear him.

Do district judges who fancy themselves above their station decide that their superiors are illegitimate?  I suppose any of us could walk up to the top corporate floor, sit in the conference room of the board of directors, and then imagine life as the one in charge.

Jokes aside, the real issue here is, in some ways, that the Supreme Court is receiving disagreement in the first place.  When Chief Justice John Roberts decries the erosion of legitimacy, what he is really upset about is the fact that people have the temerity to heckle the Umpire.  But if he knows that the Supreme Court has created many of its own worst legitimacy crises (and he does), then he must understand why people (and presidents) do that.

More to the point, if the Supreme Court’s legitimacy is undermined by the criticism that a president or a prominent candidate levels against it after a big decision, is it any more legitimate if its chief changes his decision before releasing it due to political pressures? In his 2012 re-election campaign, President Barack Obama threatened to run against the Supreme Court if it found the Affordable Care Act unconstitutional. The final decision by Chief Justice Roberts in NFIB v. Sebelius, 567 U.S. 519 that summer was such a gruesome battlefield of masochistic reasoning that even the most legally illiterate figured out that he went out of his way to re-invent the insurance mandate as a tax in order to permit its existence.  If Chief Roberts wanted to “avoid the danger of being Roger Taney,” that might have been the worst possible way to go about it.

That raises the second question: legitimacy compared to what?

However strongly one might disagree with the Supreme Court majority today, it is surely more legitimate on at least some issues than the three leftist dissenters who, in 2022, with the Dobbs decision leak and their subsequent refusal to finish their dissent, quite directly tried to kill them.  Not only did the penultimate draft of the decision leak to the press in full; the dissenting justices intentionally delayed the circulation of their dissent in order to stall the decision’s release, knowing that time was on the side of those who wished to do the majority harm.  They even included a footnote from Hell that further stalled the release of the decision by tying it to another that had not yet been released.  At a minimum, these tactics were the stark opposite of collegiality, much the way that personal and partisan blood feuding were staples of the Court’s work and personality in the 1930s-40s.

Now ponder a worse national fate. Suppose the tactic had worked, and someone had successfully murdered three conservative associate justices, as the California man parked outside Justice Kavanaugh’s home with a gun, knife, and burglary kit so wished to do. The Dobbs majority would not have held, abortion would have remained a supposed constitutionally sanctioned right, and President Biden would have been empowered to replace the three deceased with young stalwart leftists of the same intellectual caliber as Ketanji Brown Jackson to keep the Roe/Casey regime alive for generations. The assassin might still have been arrested, but the Left would have lauded him for the deed, just as it did last year when a twisted degenerate carried out its violent wishes against one of the most prominent young eloquent messengers in America. Just like in Dred Scott, the violence would have been rewarded and justified for the political end the judicial decision facilitated; not just the judicial assassinations of that 2022 spring and summer, but also the violence and insurgent mayhem of 2020 that so extorted the independent citizen of America to put a Democrat back in the White House to make it all stop. All of it would have been retroactively celebrated as the glorious and necessary revolution that stopped Trump and his right-wing Court from destroying the right to abortion. This was the future that the Court’s leftist minority, and the larger insurgent Left with its media propaganda machine and army of bail dependents were hoping to achieve. Something tells me this hypothetical court would also have a legitimacy problem.

Is the Supreme Court more legitimate than a president who flagrantly intends to disregard its ruling? When he was still running for re-election in 2024, President Biden boasted that though the Supreme Court had held that it was illegal to forgive student loans without Congress, it would not stop him.  He never successfully made good on that pledge, but that did not stop him from brazenly making it anyway.  It is also worth observing that Chief Justice Roberts and two others in the majority of that decision also made up the majority of the recent Tariffs case, where President Trump was similarly barred from acting without congressional authorization.

Unfortunately, these comparisons are also idle.  It is easy to suggest that the Supreme Court is illegitimate, but much more difficult (as well as nerdy and wonky) to, say, suggest that the McCain-Feingold (“Bipartisan Campaign Reform”) Act of 2002 was illegitimate.  Though the new restrictions on political donations were certainly duly enacted into law, that did not make it any less of an assault on free expression.  After years of punting on the issue, the Supreme Court held it as such in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) – perhaps the first truly controversial decision of the Roberts Era.

Even more fraught with personal risk is the suggestion that there may be a legitimacy problem with the Voting Rights Act of 1965. The racially-conscious “majority-minority” congressional district is itself an infringement against the Reconstruction Amendments to the Constitution.  Any law that permits it, let alone requires it, is unconstitutional.  If the Roberts Court declines to say so in Louisiana v. Callais, that would only reflect on the illegitimacy of the Court in failing to strike down an illegitimate law.

And finally, when leaks emerged, once again from the bowels of the Supreme Court, of private memos revealing discourse among justices back in 2016 pertaining to the Obama Administration’s “Clean Power Plan,” where the energy sector of America was going to be immediately re-ordered by a sweeping new EPA rule, but for a stay by the Roberts Court, the predictable New York Times spent all of its energy railing against the supposed unprecedented nature of the inter-chambers correspondence within the Court, and none whatsoever on the question of whether the EPA had the legitimate legal authority to grab power and impose itself upon the entire nation in that way.  If it was unlawful for the EPA to require states to submit carbon emission reduction plans, lest the EPA impose itself upon their lands and economies, then how could the Supreme Court be any less legitimate by exercising its authority to stop it?

Nearly every decision from the Supreme Court is also a command to the lower federal courts.

If the Supreme Court gets a decision wrong – worse even when it gets a decision wrong on purpose – it is implicitly commanding that lower federal courts make erroneous judgments, and perhaps even falsify their findings and maintain a throne of lies.  But the legitimacy crisis Chief Justice Roberts faces is in one sense self-inflicted, in another sense beyond his control as the manager of a half branch, and in the third, most critical sense subject to insurgent sabotage from within.

What was the Dobbs leak if not a violent act of sabotage against the conservative majority of the United States Supreme Court?

What are all of these bald, shriveled, frivolous injunctions and class action certifications by lower courts if not transparent attempts to abuse process and saddle Chief Roberts and the conservative majority, as well as their poor law clerks, with a morass of bureaucracy and procedure, forced to unravel the nets foisted upon them in the daily of their jobs?

None of this is to call Chief Roberts a coward or obtuse, or to suggest that his job is easy.  John Roberts is a good man.  Indeed, in many critical moments, the Chief demonstrated impressive courage and resilience.  His entire legacy as Chief cannot be fully surmised without an acknowledgment of the skillful way he and the Court’s majority in 2024 upheld constitutional immunity in the face of criminal lawfare against the President of the United States for the core exercise of his Article II powers, and also destroyed Chevron deference – another throne of lies that had been maintained over forty years.

But the Chief is also a Washington gentleman to a fault.  That is why he had so very much to say in response to comments from President Trump, but almost nothing at all to say when leaks against him and his colleagues instantly manifested into threats against their lives and families.  It is also why subordinate judges feel free to roam far beyond the bounds of their jurisdiction, to trample on the jurisdiction of the executive and even Congress whenever they so fancy, and to disregard stays, reversals, and vacating from above.  The leftist Supreme Court minority and the “Resistance” bloc of the federal district courts are behaving in the same way anyone else does the moment they see that there is nothing to deter them or hold them to account.  The last person to do so, apparently, will be the Chief himself.

In 1857, the Supreme Court destroyed itself so thoroughly with a single decision that after the Civil War began, President Lincoln ignored its commands when it suited him.  In the New Deal era, the Supreme Court destroyed itself again by giving away its power to the executive.  Today’s conservative majority of the Supreme Court has done neither, but the Judiciary nevertheless faces another episode of self-destruction from within, just as it did back then.

And so we beat on, a boat swept by undertow back into antebellum eras and the darker days of the Judiciary’s past, with the man at the helm keeping himself content in willful ignorance.  Life will not get better if the tides of illegitimacy are not forced to turn.

– Vivek