At the moment of their sweetest victory, the conservative majority on the Supreme Court appears to be freaking out. As they prepare to overturn Roe v. Wade as part of a grand project of social retrogression, they and their defenders seem shocked by the idea that anyone would consider their actions to be political.
But that’s exactly what they are. And we should stop pretending otherwise.
After a draft opinion overturning Roe was leaked to the media, conservatives brayed their feigned outrage at the supposed desecration of the leak itself, even though it might have come from the conservative side to lock in the five-vote majority for that position. In the days since, the leaks have kept coming — and now they’re obviously from the conservative camp.
In the latest, Politico reveals that none of the justices changed their minds since Justice Samuel A. Alito Jr.’s draft circulated in February, yet other conservatives are deeply saddened by what has happened since it leaked. Sources close to the justices say they are “heavily burdened by this.”
Speaking at a conference, Justice Clarence Thomas warned that the court can’t let itself get “bullied into giving you just the outcomes you want.” He also said that as a society, we must learn to live with “outcomes we don’t like.”
This is the man whose wife was deeply involved with the effort to overturn the 2020 election because it didn’t produce the outcome Republicans wanted. He also poses for pictures with Republican candidates. He officiated at the wedding of his friend Rush Limbaugh, which was held at Thomas’s house.
But Thomas is shocked — shocked! — that anyone would think court rulings could be influenced by outside forces. That’s not how it works.
How it works is that the Federalist Society identifies promising conservatives in law school and grooms them for judgeships; the Republican Senate refuses to allow a Democratic president to fill judicial vacancies; right-wing nominees deceive the public about their intentions; then once they are in the majority, they slash away at every policy and precedent they don’t like, whether on abortion or campaign finance or collective bargaining or environmental regulations.
How dare anyone treat the conservative majority and their decisions as though they exist in that grubby realm of politics, as though their rulings are a reflection of their own preferences and biases, and not the unadulterated product of their boundless wisdom and insight into the minds of the sainted Framers? The real crime here is surely the aspersions being cast on the court.
But consider this section of the Politico report, describing how Chief Justice John G. Roberts Jr. has won the ire of his conservative colleagues because at times he sides with the liberal justices:
Of those rulings, the Obamacare one ruffled the most feathers because Roberts reportedly reversed his position days before the decision was announced, ultimately voting to find the law constitutional.
“There is a price to be paid for what he did. Everybody remembers it,” said an attorney close to several conservative justices, who was granted anonymity due to the sensitive nature of the court’s arguments.
This appears to imply that because Roberts didn’t side with conservatives to strike down the Affordable Care Act entirely (though he did vote to invalidate the individual mandate), they’re now seeking revenge on him. Either that, or “the price to be paid” is the venomous loathing Roberts got from the conservative movement, which other conservative justices seek to avoid.
That 2012 case is at the root of conservative displeasure with Roberts — and it’s precisely because he didn’t act politically enough for their taste. They wanted the whole law struck down, and Roberts ultimately couldn’t find a legal justification to do so. It was a simple political power move: Republicans didn’t like a law Democrats passed, so they begged the court to do what they failed to do through politics and destroy it. Roberts didn’t go along, and for that they consider him a traitor.
This is why it’s so surreal to watch conservatives — even the justices themselves — talk about these issues. This is the most profoundly political court you could imagine, yet at every step the right expresses outright rage at the idea that anyone would consider them political. On Fox News, speakers positively vibrate with fury over peaceful protests outside a couple of the justice’s homes, bringing politics to their doorsteps.
It’s a bizarre contradiction, one that goes beyond mere hypocrisy. For decades Republicans put capturing the courts at the center of their political project. They use it to motivate their voters in every election. Senate Minority Leader Mitch McConnell (R-Ky.) bragged that “one of my proudest moments” was his refusal as majority leader to allow President Barack Obama to fill a vacancy. They reject nominees seen as insufficiently conservative, and celebrate those who are.
Above all, we’re here now because Republicans never stopped treating the Supreme Court as profoundly, entirely political, in a way Democrats failed to do. And yet Republicans will deny it until their last breath.
Is it because they feel guilty? No, Republicans don’t feel guilt. Do they think we’re all stupid? Maybe, but that’s not it.
The real reason is that it’s more important than ever for the right that the court retain its legitimacy. The more it’s seen as an arm of the conservative movement enacting a right-wing political agenda, the greater the threat to its image as a neutral arbiter of the Constitution. And the greater the possibility of reform, such as term limits for justices or an expansion of the court.
They want us all to view each new ruling as inevitable and pointless to fight against, existing in a lofty realm politics cannot touch. If we accept that, then they win.