Tin-Eared Justice
How the Supreme Court sounds to people matters
It is almost a cliché by now, the natural “feebleness” of courts, as Alexander Hamilton put it, the notion that they have “neither force nor will” but only the power of “judgment.” That power turns out to be plenty strong, of course, because it is essentially the ability to say what the law is, no matter what the president or Congress or the rest of us think.
Sometimes courts get the law wrong and go too far. Sometimes they get it right but are not allowed to go far enough, as Justice Ketanji Brown Jackson complained on Friday about the Supreme Court decision that limited single judges’ orders blocking the president’s clearly unconstitutional birthright-citizenship ban. The orders could not apply nationwide, the court majority ruled, leading Jackson to ask, a bit incredulously, “May a federal court in the United States of America order the Executive to follow the law?” The majority’s answer: Yes, but.
In any event, what most everyone agrees on is that courts should stick to the law and not consider public opinion – how their rulings might be seen and heard. The truth is, being human, they sometimes can’t help it. Other times, a decision is so consequential they need to ensure people’s buy-in, as when the justices seek unanimity in, say, overturning school desegregation.
I’d go farther. When it comes to this Supreme Court, at this moment, under this president, the justices need to wake up and seriously consider how their words and decisions are playing in pubic.
Take last Monday’s ruling on deportation. In May, a group of male immigrants challenged an order to spirit them from the United States to some unknown destination. A federal judge blocked the order, ruling that the immigrants deserved notice of where they were going and a hearing on whether they would be tortured or otherwise abused there. Days later, despite the judge’s ruling, the men found themselves on a plane headed to South Sudan, where violence and war rule the day. The judge demanded that the government divert the flight to a U.S. military base in, Djibouti, in eastern Africa and – again – that the men be given lawyers and a chance to challenge their removal to South Sudan. The administration said it would comply.
It didn’t.
Instead, it asked the Supreme Court to put the judge’s order on hold while the government appealed and, without explanation the court granted the request.
The Trump administration has tested the patience of judges – and sometimes ignored their rulings – in too many deportation cases, but this one may be the most blatant example of defiance. Justice Sonia Sotomayor wrote a stinging dissent in this one, but the full court? Essentially not a word, nothing about why the request was granted or how it could possibly be OK to flout the orders of a federal judge. The message to the administration: Feel free to do this again. The message to the public: If you’re looking for justice and due process from us, maybe look elsewhere.
Another recent case of atrocious messaging involved a longstanding problem for the Supreme Court, the perception that it’s in corporate America’s pocket. A week ago Friday, the justices ruled, 7-2, that oil-refiners had standing to sue California over its electric-vehicle mandate.
Under the Biden administration, the state had received a federal waiver allowing it to set its own automobile emissions standards and require the sale of more EVs. The refiners argued that, even though the mandate did not affect them directly, they would be hurt – a requirement for having standing – because Californians would buy less gasoline.
Golden State consumers were already purchasing far more Teslas and other EVs than required, and the lower courts ruled that the refiners had failed to show that people would suddenly up their purchases of gas guzzlers without the mandate – or that automakers would want them to. Oh, and the Trump administration had already said it would abolish the mandate. So what was the point of the lawsuit?
No matter. The Supreme Court did the refiners the favor of granting them standing, even though in a slew of similar cases – ones involving parties, like refiners, not harmed directly – the court had ruled that less-privileged plaintiffs did not have standing.
Pointing out that the court majority “does not explain why it is so eager to resolve this highly factbound, soon-to-be-moot dispute,” Justice Jackson wrote in a dissenting opinion that, for some people, “this decision will only harden their sense that the court softens” its standards “when evaluating petitions from moneyed interests. This court’s simultaneous aversion to hearing cases involving the potential vindication of the rights of less powerful litigants – workers, criminal defendants, and the condemned, among others – will further fortify that impression.”
The Wall Street Journal editorial page and others of its ilk mocked Jackson for being light on evidence to back her claims of the court’s corporate tilt. But there’s little doubt that it’s true – and has been at least since the court under Chief Justice Warren Burger, egged on by the U.S. Chamber of Commerce, began loosening the legal reins on corporate behavior in the early 1970s. Maybe more important, the perception is real – and corrosive – and Jackson is indisputably correct that it’s exacerbated when the court bows to gasoline companies on such dubious grounds.
At risk here, at the end of its term, is the Supreme Court’s credibility. The court must surely stick to the law in all it does. But when it fails to explain its decisions, when it is careless about its biases, when even unintentionally it delivers a tin-eared message that undermines our democracy, it loses the confidence of the people. With that loss comes the danger that many Americans, not just a lawless president, will no longer heed its decisions.
If that happens, we would do well to recall the words that open every session of the Supreme Court: "God save the United States and this Honorable Court."