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Roberts strikes out defending high court’s legitimacy, experts say

The chief justice argues the Supreme Court’s opinions shouldn’t impact its legitimacy, prompting observers to ask what does.

WASHINGTON (CN) — Chief Justice John Roberts is among the most staunch defenders of the high court’s legitimacy but with the conservative supermajority testing his defenses, court watchers say his latest rebuttal rings hollow. 

After a term with controversial rulings, unprecedented leaks and political scandals, Roberts spoke publicly for the first time on Friday at a conference for the 10th Circuit in Colorado. Acknowledging the unprecedented 2021 term, Roberts seemed ready to herald in a sense of normalcy, announcing the public would again gain access to the court in October. 

But before the court enters another term stacked with contentious issues, the chief justice had some words for his critics. 

“There is one thing though, that looking back on the year and how it's been addressed in a number of places that does cause me a little bit of concern,” he said. 

Roberts said the court has always decided controversial cases and those decisions always receive criticism. While he thinks the public should criticize the court’s rulings, he does not think that should impact the court’s legitimacy. 

“The court has always decided controversial cases, the decisions have always been subject to intense criticism, and that is entirely appropriate,” he said. “Citizens feel free to criticize our opinions and how we do our work, but lately, the criticism is phrased in terms of, you know, because of these opinions, it calls into question the legitimacy of the court. And I think it's a mistake to view those criticisms in that light.” 

The Supreme Court distinguishes itself from the other political branches in many ways but especially in how it interacts with the public. Unlike members of Congress or the president, the high court doesn’t hold public addresses, campaign rallies or press conferences. The court predominately speaks through its rulings. However, Roberts now says that sole form of communication shouldn’t impact its legitimacy. 

“The court only speaks through its opinions, and it acts through its opinions, and its impact on Americans is through its opinions,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in an interview. “You can't separate opinions from the court’s legitimacy.” 

Roberts’ comments seem to imply that the public is critiquing the court’s legitimacy because they are unhappy with the outcome of certain cases. In reality, experts say that characterization ignores the real critique. While the justices’ decision to overturn Roe v. Wade received backlash, it was not only because people were unhappy with the ruling, but because of the perception that the court only came to that decision because of its current makeup

“I think he is, with all due respect, misframing the argument to say it's because people don't like the outcome,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “I think what people are responding to is the fact that when the court changes membership, there are changes in the law that are swift and dramatic.” 

The high court overturned 50 years of precedent to throw out Roe. That case in particular created the view that the court’s rulings are decided not by judges who look at cases and rule according to the law, but by judges who are put in place to vote a specific way in order to change the law. 

“That's what the chief either does not seem to understand or more likely did not wish to discuss,” Lawrence said. 

While Roberts seemed reluctant to discuss the court’s legitimacy issues in public, the same could not be said about his opinions this term. In Dobbs v. Jackson Woman’s Health Organization, he criticized the conservative majority for going further than needed in their ruling. Roberts himself said that overturning Roe and Planned Parenthood v. Casey, another landmark abortion rights ruling, was a “serious jolt to the legal system — regardless of how you view those cases.” 

“It's particularly ironic that he is avoiding this issue in that his opinion in the Dobbs case demonstrates the point better than anybody,” Lawrence said. “What he says in the Dobbs case is that we are duty bound to make the smallest decisions we can, we shouldn't reach out and grab the biggest decision that doesn't have to be made, practically shouting this to the majority.” 

Roberts said if the court lost its legitimacy and was not able to perform its role within our system, it was unclear who would. 

“If the court doesn't retain its legitimate function of interpreting the Constitution, I'm not sure who would take up that mantle,” the chief justice said. “You don't want the political branches telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is. So yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time, but simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.” 

This point confused court watchers who note that not only do political branches make laws, but Roberts' statement contradicts the court’s rulings this term. In Dobbs, the court said the political branches should be the ones deciding the legality of abortion, not the court. In West Virginia v. EPA, the court created a precedent that forces Congress to be specific in their lawmaking so the courts know how to interpret it. 

“It's completely contrary to what they said in the Dobbs opinion, which is that it should go back to the states, to political branches, and it shouldn't be decided by the courts,” Gostin said. “Then, just a couple of weeks apart in the firearms case, it struck down a concealed weapons statute that goes back nearly a century in New York and says, no, the states can't make their own decisions. So it's painfully obvious that they're coming to a political conclusion and trying to find reasons for that conclusion.” 

Court watchers not only disagree with Roberts’ characterization of the court’s legitimacy issues, but they say his comments also show a lack of awareness

“He's lost touch with the public if he really believes that the entire episode is just something that reasonable people can disagree with, but it doesn't affect the legitimacy of the court,” Gostin said. “He's detached and out of touch with what everyday Americans think.” 

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