I know I'm late to the party here, Charlie, so it's unlikely that you'll retrace your steps and see this, but I had to say that I've been reading your columns every day for quite a while now and I think that this is the most consequential one you've written recently. The reduction of one of our three branches of government - the compass of justice we have relied upon for 200+ years - will put a nail in the coffin of the thing that truly makes America exceptional: the rule of law. I'd like to see you revisit this theme soon as the MAGA assault on the courts and DOJ grows in intensity and frequency.
This is a huge problem, and everyone from your folks (Never Trump R's) to my folks (Never R Ds) needs to get it and moderate their attacks on the current court in order to protect SCOTUS itself as one leg of the stool, without which it will topple over.
I will stand down slightly vs. this Roberts Supreme Court. I here what you are saying but it certainly pains me to have to admit that a ruling in our favor against a Trump 2.0 will be more convincing g moderate QOP voters.
Yes, it’s easy to see why principled conservatives like Charlie would see the judiciary as a “bulwark” against both majoritarianism run amok (serious) and attacks on the very structure of democracy (more serious). My issue with the Supreme Court with its lifetime members is that it (conceivably) could resemble Britain’s earlier House of Lords with its lifetime peers, which before the Parliament Act of 1911, could veto any legislation approved by the House of Commons. I’m reminded that there was no explicit judicial review in the Constitution before John Marshall put it in there with Marbury vs. Madison. Of course, judicial activism is all relative: conservatives loved the activist 1930s Court which was busy overturning New Deal legislation and hated the activist 1960s Court (I’m old enough to remember the “Impeach Earl Warren” billboards of the time); for liberals it was the opposite.
Furthermore, I don’t believe the Court and its actions are necessarily “illegitimate” but I question how
far the current members can go with their seeming exclusive reliance on “originalism” and “textualism.” I’ve heard it said that all a current SCOTUS justice needs to interpret the law is a good 18th century dictionary. After all, it was the great Justice Oliver Wendell Holmes who said that “the life of the law is not logic but experience.”
What you say is true, but things could get worse. The idea is being floated among Republicans that they should declare in advance who their nominees for judgeships would be so that everyone would know what policies the politicians want the judges to implement. The role of the judicial system is to settle disputes, not to implement policy.
Lest there be any misunderstanding, let's get it extremely clear that what presidential candidate Vivek Ramaswamy has done is totally improper and and is an attempt to completely pervert our system of justice.
The proper role of judges in our legal system at every level is to evaluate cases on the basis of the facts shown by evidence and apply existing law to those facts to settle actual disputes.
What Ramaswamy is attempting to do is to make judges instruments of policy rather than to have them settle didputes. If his approach were to take hold, it would completely destroy our judicial system.
Charlie, I agree that the courts & SCOTUS will be a final bulwark against authoritarianism. However, the guardrails are disintegrating. While many on the left complain about the court’s decisions, they comply. AL has chosen to ignore SCOTUS. Trump ignored 60+ court decisions in 2020 & tried a coup anyway. He ignored the E Jean Carrol verdict and has continued his assault on her. Fox hasn’t been chastened by the DE court decision. Again, your premise that we must uphold the last remaining institutions, especially the courts, is correct. Again, I’ll repeat- the left complains LOUDLY, but complies. Many entities on the right seem to see court decisions as suggestions. That’s where the legitimacy of the court has been weakened. I love your newsletters and podcasts. I ask however, that you include the right’s disregard of court decisions in your argument.
I appreciated your article. Gave me a lot to think about in terms of short vs. long term thinking and of not letting anger cloud my judgment. They still get a failing grade in a couple of areas, but I do feel the institution must be maintained if we are to crawl out of this partisan hole and save democracy, which is my number one goal.
Sorry Charlie, but any serious piece about the concerns of delegitimizing SCOTUS that does not mention McConnell/Garland, is not a serious piece of commentary. Rather it's a whitewash of the truth. While I share your concerns about self-fulfilling prophecies about eroding SCOTUS' reputation, until you offer up a solution to give the Dems back at least one (arguably two) SCOTUS seats that were taken from them, your criticism pales against the reality of the situation.
Well, well, well....turns out that the GOP majority congress in the state of Tennessee decided to do just that-not follow the specific ruling of the US Supreme Court. It is the conservatives-not the libs who are blowing up the institution of the judicial branch.
The word “legitimate” in this debate has always bothered me--I’m not sure what it means. I can accept that a court is liberal or conservative, even when I don’t like rulings. The criticisms of this court go beyond that. This court was, in fact, populated by one party cheating. It ignores precedent. It ignores standing. It issues a huge number of shadow docket rulings, with no explanation. Is it legitimate? Well, the justices are on the bench and doing what justices do, so it is the only Supreme Court we’ve got.
Agree with you and Will, Charlie. We cannot delegitimize the courts! They were truly the bulwark against Trump and his toadies’ illiberal and autocratic attempts to overthrow an election. And they came frighteningly close to succeeding except for some brave, courageous republican state officials in key states. Keep speaking the truth and common sense Charlie! Thank you!
I agree Charlie. The Supreme Court shot down the Alabama redistributing and Alabama is now saying they will not follow the Supreme Court!! Talk about cherry picking. Republicans celebrated The Dobbs decision but choose to ignore this decision enforcing voting rights. The courts need to not be discredited by the left or right.
I understand the point that Charlie makes in his newsletter and agree that we all need to be cognizant of how we talk about institutions. Yes, that includes progressives. But it also includes institutional personalities and in particular, the justices themselves. Brett Kavanaugh did not have to sneer with satisfaction at Democratic Senators during his confirmation hearing while Lindsay Graham feigned outrage over legitimate character concerns. Justice Alito did not have to add superfluous and condescending language to the Dobbs decision; language that screamed, "haha, we won!" Chief Justice Roberts could have showed up at the Senate Judiciary hearing and the Thomases could act as if they care how others perceive them.
Yes, progressives are upset with the decisions. But they are also upset - I would argue profoundly upset - that many of the Justices lied during their confirmation hearing when they said that Roe was settled law. They are upset that arguably a few of them shouldn't even BE Justices because they were confirmed under auspicious circumstances (Gorsich, Kavanaugh, Barrett). And finally, they are upset because it seems that a few of the justices use the institution as cover for a political ideology that they are supposed to be above. Allowing the left, such that it is, a little time to spout off and question the Court's legitimacy isn't going to hurt it long term. When push comes to shove, we're the ones defending the institutions by trying to reform from within. It's the other side that wants to burn everything down.
Regarding the legitimacy of the Supreme Court: I'm not convinced that should the GOP undertake a full scale attempt at stealing the 2024 election that the current SCOTUS would stop them.
If Trump is the GOP nominee in 2024 (he will be if he's still breathing) and if the GOP controls the House and Senate, I truly believe that regardless of the outcome of the election (Trump actually winning could be the better scenario) the GOP will try to install him as President.
The majority of the GOP in Congress was squeamish about violating tradition and norms last time. After Jan 6th and 4 years of additional threats and rhetoric from MAGA, I don't think there will be as much hesitation this time.
2024 very well could be the year we lose our democracy to racism. It's the ultimate revenge of the Confederacy, 158 years in the making.
I think it's important to be clear about what constitutes disagreement on interpretation and rulings and what should call legitimacy into question, and I agree those are different things. Charlie does acknowledge the ethics issues that have recently come to light, and that certainly goes to legitimacy. But in my opinion, the Dobbs decision is one I disagree with but does not appear illegitimate, but the covid cases, the student loan case, and website designer case are different.
What concerns me about this court and why I question their legitimacy is that they do not seem to be enforcing the constitutional limits on their own power in a few key ways. The only real limit on the court's power in the Constitution once you accept their authority around judicial review is that they can only hear cases between parties with an identifiable remedy after the standard appellate process has not resolved the legal questions in play.
When the court issued emergency injunctions in the covid cases that directly contradicted the existing settled law, they exceeded their authority. Emergency injunctions are supposed to only be used in cases where the existing law is clear and simply wasn't followed. That wasn't the case in covid, whatever you think of the closures, that precedent had long been held, and the Supreme Court should have waited for the standard appellate process to play out before changing the law, but they didn't do that.
The student loan case is one where I strongly disagree with a lot of the Bulwark people. The emergency provisions are typed right into the statute. It clearly defines who decides whether there's an emergency and then clearly defines who decides what remediation is correct. The "major questions doctrine" is just made up nonsense. Where does it say that Congress has to use certain levels of specificity in their laws? It doesn't, the Supreme Court just made that up. Maybe Congress shouldn't write vague laws, but they did.
The legitimacy problem comes from them not following their own rules, and since their only function is to interpret and follow rules, I certainly understand why their legitimacy is being questioned. It's not for failure to come to a certain outcome, it's the failure to work within their own restraints.
Yes it does. As does the rejection of expertise, as a side-effect of social media. I expect large language model system to further erode this respect. It looks like Dr GPT will soon replace Dr Google as the source of questions that patients will bring to physicians. Some of that is, of course, all to the good.
I've largely given up trying to change people minds on their commitments to homeopathy and rejection of vaccination. One of the other side-effects of the net is to compress everything to now, giving the obsolete eternal life and over-weighted emphasis in everyday decision-making. Knowledge in science is never certain and always subject to updates. I know some strict Bayesian Decision Theoist, whose statements are always conditional (e.g., so we're meeting at noon for lunch, right? yes, or no? A: maybe, yes within with a 5% confidence interval) :)
I know I'm late to the party here, Charlie, so it's unlikely that you'll retrace your steps and see this, but I had to say that I've been reading your columns every day for quite a while now and I think that this is the most consequential one you've written recently. The reduction of one of our three branches of government - the compass of justice we have relied upon for 200+ years - will put a nail in the coffin of the thing that truly makes America exceptional: the rule of law. I'd like to see you revisit this theme soon as the MAGA assault on the courts and DOJ grows in intensity and frequency.
This is a huge problem, and everyone from your folks (Never Trump R's) to my folks (Never R Ds) needs to get it and moderate their attacks on the current court in order to protect SCOTUS itself as one leg of the stool, without which it will topple over.
I will stand down slightly vs. this Roberts Supreme Court. I here what you are saying but it certainly pains me to have to admit that a ruling in our favor against a Trump 2.0 will be more convincing g moderate QOP voters.
Yes, it’s easy to see why principled conservatives like Charlie would see the judiciary as a “bulwark” against both majoritarianism run amok (serious) and attacks on the very structure of democracy (more serious). My issue with the Supreme Court with its lifetime members is that it (conceivably) could resemble Britain’s earlier House of Lords with its lifetime peers, which before the Parliament Act of 1911, could veto any legislation approved by the House of Commons. I’m reminded that there was no explicit judicial review in the Constitution before John Marshall put it in there with Marbury vs. Madison. Of course, judicial activism is all relative: conservatives loved the activist 1930s Court which was busy overturning New Deal legislation and hated the activist 1960s Court (I’m old enough to remember the “Impeach Earl Warren” billboards of the time); for liberals it was the opposite.
Furthermore, I don’t believe the Court and its actions are necessarily “illegitimate” but I question how
far the current members can go with their seeming exclusive reliance on “originalism” and “textualism.” I’ve heard it said that all a current SCOTUS justice needs to interpret the law is a good 18th century dictionary. After all, it was the great Justice Oliver Wendell Holmes who said that “the life of the law is not logic but experience.”
What you say is true, but things could get worse. The idea is being floated among Republicans that they should declare in advance who their nominees for judgeships would be so that everyone would know what policies the politicians want the judges to implement. The role of the judicial system is to settle disputes, not to implement policy.
Lest there be any misunderstanding, let's get it extremely clear that what presidential candidate Vivek Ramaswamy has done is totally improper and and is an attempt to completely pervert our system of justice.
The proper role of judges in our legal system at every level is to evaluate cases on the basis of the facts shown by evidence and apply existing law to those facts to settle actual disputes.
What Ramaswamy is attempting to do is to make judges instruments of policy rather than to have them settle didputes. If his approach were to take hold, it would completely destroy our judicial system.
Charlie, I agree that the courts & SCOTUS will be a final bulwark against authoritarianism. However, the guardrails are disintegrating. While many on the left complain about the court’s decisions, they comply. AL has chosen to ignore SCOTUS. Trump ignored 60+ court decisions in 2020 & tried a coup anyway. He ignored the E Jean Carrol verdict and has continued his assault on her. Fox hasn’t been chastened by the DE court decision. Again, your premise that we must uphold the last remaining institutions, especially the courts, is correct. Again, I’ll repeat- the left complains LOUDLY, but complies. Many entities on the right seem to see court decisions as suggestions. That’s where the legitimacy of the court has been weakened. I love your newsletters and podcasts. I ask however, that you include the right’s disregard of court decisions in your argument.
I appreciated your article. Gave me a lot to think about in terms of short vs. long term thinking and of not letting anger cloud my judgment. They still get a failing grade in a couple of areas, but I do feel the institution must be maintained if we are to crawl out of this partisan hole and save democracy, which is my number one goal.
Sorry Charlie, but any serious piece about the concerns of delegitimizing SCOTUS that does not mention McConnell/Garland, is not a serious piece of commentary. Rather it's a whitewash of the truth. While I share your concerns about self-fulfilling prophecies about eroding SCOTUS' reputation, until you offer up a solution to give the Dems back at least one (arguably two) SCOTUS seats that were taken from them, your criticism pales against the reality of the situation.
Well, well, well....turns out that the GOP majority congress in the state of Tennessee decided to do just that-not follow the specific ruling of the US Supreme Court. It is the conservatives-not the libs who are blowing up the institution of the judicial branch.
Correction: Alabama - not Tennessee.
The word “legitimate” in this debate has always bothered me--I’m not sure what it means. I can accept that a court is liberal or conservative, even when I don’t like rulings. The criticisms of this court go beyond that. This court was, in fact, populated by one party cheating. It ignores precedent. It ignores standing. It issues a huge number of shadow docket rulings, with no explanation. Is it legitimate? Well, the justices are on the bench and doing what justices do, so it is the only Supreme Court we’ve got.
Agree with you and Will, Charlie. We cannot delegitimize the courts! They were truly the bulwark against Trump and his toadies’ illiberal and autocratic attempts to overthrow an election. And they came frighteningly close to succeeding except for some brave, courageous republican state officials in key states. Keep speaking the truth and common sense Charlie! Thank you!
I agree Charlie. The Supreme Court shot down the Alabama redistributing and Alabama is now saying they will not follow the Supreme Court!! Talk about cherry picking. Republicans celebrated The Dobbs decision but choose to ignore this decision enforcing voting rights. The courts need to not be discredited by the left or right.
I understand the point that Charlie makes in his newsletter and agree that we all need to be cognizant of how we talk about institutions. Yes, that includes progressives. But it also includes institutional personalities and in particular, the justices themselves. Brett Kavanaugh did not have to sneer with satisfaction at Democratic Senators during his confirmation hearing while Lindsay Graham feigned outrage over legitimate character concerns. Justice Alito did not have to add superfluous and condescending language to the Dobbs decision; language that screamed, "haha, we won!" Chief Justice Roberts could have showed up at the Senate Judiciary hearing and the Thomases could act as if they care how others perceive them.
Yes, progressives are upset with the decisions. But they are also upset - I would argue profoundly upset - that many of the Justices lied during their confirmation hearing when they said that Roe was settled law. They are upset that arguably a few of them shouldn't even BE Justices because they were confirmed under auspicious circumstances (Gorsich, Kavanaugh, Barrett). And finally, they are upset because it seems that a few of the justices use the institution as cover for a political ideology that they are supposed to be above. Allowing the left, such that it is, a little time to spout off and question the Court's legitimacy isn't going to hurt it long term. When push comes to shove, we're the ones defending the institutions by trying to reform from within. It's the other side that wants to burn everything down.
True about it being hard to pass. But if it's a consitutional amendment, the SC has no say.
Regarding the legitimacy of the Supreme Court: I'm not convinced that should the GOP undertake a full scale attempt at stealing the 2024 election that the current SCOTUS would stop them.
If Trump is the GOP nominee in 2024 (he will be if he's still breathing) and if the GOP controls the House and Senate, I truly believe that regardless of the outcome of the election (Trump actually winning could be the better scenario) the GOP will try to install him as President.
The majority of the GOP in Congress was squeamish about violating tradition and norms last time. After Jan 6th and 4 years of additional threats and rhetoric from MAGA, I don't think there will be as much hesitation this time.
2024 very well could be the year we lose our democracy to racism. It's the ultimate revenge of the Confederacy, 158 years in the making.
I think it's important to be clear about what constitutes disagreement on interpretation and rulings and what should call legitimacy into question, and I agree those are different things. Charlie does acknowledge the ethics issues that have recently come to light, and that certainly goes to legitimacy. But in my opinion, the Dobbs decision is one I disagree with but does not appear illegitimate, but the covid cases, the student loan case, and website designer case are different.
What concerns me about this court and why I question their legitimacy is that they do not seem to be enforcing the constitutional limits on their own power in a few key ways. The only real limit on the court's power in the Constitution once you accept their authority around judicial review is that they can only hear cases between parties with an identifiable remedy after the standard appellate process has not resolved the legal questions in play.
When the court issued emergency injunctions in the covid cases that directly contradicted the existing settled law, they exceeded their authority. Emergency injunctions are supposed to only be used in cases where the existing law is clear and simply wasn't followed. That wasn't the case in covid, whatever you think of the closures, that precedent had long been held, and the Supreme Court should have waited for the standard appellate process to play out before changing the law, but they didn't do that.
The student loan case is one where I strongly disagree with a lot of the Bulwark people. The emergency provisions are typed right into the statute. It clearly defines who decides whether there's an emergency and then clearly defines who decides what remediation is correct. The "major questions doctrine" is just made up nonsense. Where does it say that Congress has to use certain levels of specificity in their laws? It doesn't, the Supreme Court just made that up. Maybe Congress shouldn't write vague laws, but they did.
The legitimacy problem comes from them not following their own rules, and since their only function is to interpret and follow rules, I certainly understand why their legitimacy is being questioned. It's not for failure to come to a certain outcome, it's the failure to work within their own restraints.
Yes it does. As does the rejection of expertise, as a side-effect of social media. I expect large language model system to further erode this respect. It looks like Dr GPT will soon replace Dr Google as the source of questions that patients will bring to physicians. Some of that is, of course, all to the good.
I've largely given up trying to change people minds on their commitments to homeopathy and rejection of vaccination. One of the other side-effects of the net is to compress everything to now, giving the obsolete eternal life and over-weighted emphasis in everyday decision-making. Knowledge in science is never certain and always subject to updates. I know some strict Bayesian Decision Theoist, whose statements are always conditional (e.g., so we're meeting at noon for lunch, right? yes, or no? A: maybe, yes within with a 5% confidence interval) :)