A politicized Supreme Court? That was the point

Self-promotion always comes with risks, especially when it involves denying the obvious. President Nixon only validated suspicions when he insisted at a televised press conference that “I’m not a crook.” President Clinton drew hoots of laughter when, as a candidate, he admitted that he had once tried marijuana, but “didn’t inhale.” And when President Trump denied knowing anything about the hush-money payments to porn actress Stormy Daniels, well, let’s just say that it took big-league credulity to give any credence to that one. As so often happens with provocative self-justification, these denials simply heightened mistrust while reinforcing the original allegations.

If Supreme Court Justice Amy Coney Barrett had been better aware of that history, she might have chosen her words more carefully in a recent appearance at the University of Louisville. As it was, Barrett stood next to Senate Minority Leader Mitch McConnell (R-Ky.), who founded the university’s eponymous McConnell Center in 1991, and declared that her objective that day was to convince the audience that the Supreme Court “is not comprised of a bunch of partisan hacks.”

Barrett’s protestation did not come out of nowhere. Just like Nixon, Clinton and Trump, she was responding to very pointed criticism in the press, in this case the many charges that the Supreme Court had become thoroughly politicized by Trump’s three appointments, which created a powerful 6-3 conservative super-majority.

Nor was Barrett the only justice to embark on what has been called a “charm offensive” to shore up the Court’s newly-questioned legitimacy. Delivering the annual Tocqueville Lecture at Notre Dame, Justice Clarence Thomas told the audience that his colleagues do not rule on the basis of “personal preferences,” and he rebuked those who believe that a justice is “like a politician.”

Also speaking at Notre Dame, Justice Samuel Alito denied that any of the Court’s recent rulings had been “sneaky or dangerous.” He took caustic aim at the Court’s critics, dismissing the “political talk [that] feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

Justice Stephen Breyer was only slightly less defensive – studiously avoiding any suggestion of hackery or sneakiness – in a series of interviews about his new book. Responding to calls for his retirement, while Joe Biden is president and Democrats still control the Senate, Breyer insisted that “a judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

However much the Barrett/Thomas/Alito/Breyer attestations resonated with their friends and supporters, they did nothing to defuse the increasing claims of politicization. As Dahlia Lithwick and Mark Joseph Stern pointed out on Slate, the Court has lately fulfilled a virtual Republican wish-list, making it “harder for minorities to challenge racist voter suppression laws, harder for unions to organize, and harder to learn who is contributing funds to political groups,” while also allowing Texas’s bounty-hunting anti-abortion law to take effect (in an unsigned opinion issued at midnight). If it wasn’t a politicized court, it certainly had the appearance of one.

Just last week, President Biden’s Presidential Commission on the Supreme Court of the United States released a lengthy set of “discussion materials” that undermined any meaningful attempts at depoliticization, or even balance, for the Court. Statutory expansion beyond the current nine justices – supported by a growing number of Democrats and clearly permissible under the Constitution – was essentially brushed off for its ostensibly “negative effects” on the Court’s “long-term legitimacy” that could “undermine its role in our legal system.” (At least five of the 34 commissioners have publicly disagreed with this supposition.)

Republicans, of course, never had qualms about tinkering with the Supreme Court’s composition, having fashioned an eight-member court during the nearly year-long blockade of Merrick Garland’s nomination in 2016. But determining the Court’s size is evidently an exclusively Republican prerogative.

The Commission did allow that term limits might be desirable, although Biden later said that he is opposed to the idea. In any case, that reform would likely require a Constitutional amendment, which would not be fully operative until somewhere between 21 and 46 years after ratification (depending on the details). Under most term limit proposals, a child born tomorrow could grow up, attend college, graduate from law school, and still be sworn into the Supreme Court bar by Justices Barrett, Kavanaugh and Gorsuch.

Meanwhile, Mitch McConnell is surely smiling, delighted that he has masterminded the formation of a Republican-friendly Supreme Court that may endure for decades. If McConnell were asked whether the Court has been politicized, he might well quote then-candidate Barack Obama’s candid response to a question about his youthful marijuana use.

Did he inhale? “That was the point.”

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery.”