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At the end of his majority opinion for the Supreme Court striking down the Biden administration’s student loan forgiveness program, Chief Justice John Roberts stridently protested the scope and tone of Justice Elena Kagan’s dissent for the court’s three liberal justices. Kagan, pulling no punches, wrote that the court majority “violates the Constitution” by “exercis[ing] authority it does not have.” Roberts lamented the “disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.” In ruling that the Biden administration exceeded its powers, “we have employed the traditional tools of judicial decisionmaking,” Roberts contended, warning that the public should not be “misled” to read this “heartfelt disagreement” over which “reasonable minds may disagree” as “disparagement.”
Roberts’ bristling in Biden v. Nebraska over the dissenters’ temerity to claim that the six-justice majority crossed the line from legitimate application of judicial principles to a judicial power grab is more than a bit ironic. Just three days earlier in Moore v. Harper, Roberts wrote another majority opinion that sets up the Supreme Court and other federal courts to routinely ask whether state courts are crossing the exact same line in the most sensitive of political cases. Roberts’ reaction in Nebraska should have told him that this exercise of judicial legitimacy line-drawing in high-profile cases is folly and will lead to even greater polarization over the judiciary.
As I recently explained in Slate, in Moore the Supreme Court did more than reject a crazy theory that would have given state legislatures virtually unlimited authority to decide the rules for conducting federal elections. The court also held that federal courts (and especially the Supreme Court) can determine whether state courts have gone too far in their interpretation of state constitutions protecting the right to vote or in reading state election statutes applied to federal elections. It held that “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”
The court in Moore didn’t really explain what those dense words mean, but the test put forward by the Moore majority seems to require federal courts to look at the opinions of state courts exactly the same way that the dissenters in Nebraska looked at the opinion of the court majority in Nebraska. It asks one set of judges to judge the judging of other judges.
The majority in Nebraska said that all they were doing in ruling on standing questions and in applying the so-called major questions doctrine to interpret a federal statute about student loan forgiveness was to “employ the traditional tools of judicial decisionmaking.” Not so, said the dissenters: You’ve mangled ordinary principles of standing and statutory interpretation to reach a result you like on policy grounds.
The majority in Nebraska did not like being characterized by the dissenters as usurping the judicial function and letting politics sweep in. But consider the kinds of questions that will come up under the test embraced in Moore. In Moore itself, the North Carolina state Supreme Court decided that partisan gerrymandering violated the North Carolina Constitution’s protection for “free and fair” elections. How will a federal court decide if that state court interpretation goes too far and “arrogates” power vested in state legislatures? Will the Supreme Court decide it is “arrogation” if the state court offers a novel interpretation of the state constitution? As Leah Litman writes, such a rule would serve to penalize interpretations of state constitutional provisions that protect voters that reach state courts for the first time.
Or maybe the Supreme Court would see a state Supreme Court as “arrogating” power vested in legislatures if the state court embraces a living constitutionalism, reading state constitutional provisions as malleable adapting to present values. That is an accepted means of interpretation among some judges and scholars, although not among those conservative justices on the Supreme Court who not only embrace the idea that the Constitution should be interpreted as it was originally understood when enacted, but also see “originalism” as the only legitimate means of constitutional interpretation.
In other words, the Supreme Court in Moore has put itself in a position to second-guess the legitimacy of interpretation by state courts, just as the dissenters did to the majority in the Nebraska case. But the context of the second-guessing in Moore will be even worse, because these cases necessarily involve disputes over elections, some taking place while an election is ongoing or has just occurred. In the worst case, as I recently explained, these kinds of disputes may be determinative of the outcome of a presidential election.
One would think, especially after the Nebraska ruling, that the conservative justices in the majority in Moore would be more sensitive to the risks of policing the boundary between legitimate and illegitimate means of judicial interpretation. In a 2021 speech delivered at (I kid you not) the McConnell Center at the University of Louisville, Justice Amy Coney Barrett aimed to convince her audience that “this court is not comprised of a bunch of partisan hacks.” When the court is 6–3 along ideological lines in big cases like those about abortion, guns, affirmative action, and student loans, how is the public to believe that?
In an interview earlier this year with the Wall Street Journal opinion page, Justice Samuel Alito lamented the attacks on the Supreme Court’s decision making and whether it is acting legitimately in its rulings. “We are being hammered daily, and I think quite unfairly, in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense. … If anything, they’ve participated to some degree in these attacks.” Maybe the organized bar is not coming to the defense of the majority of the court because they, too, wonder why the biggest decisions are 6–3, with all the Republican-appointed justices on one side and all the Democratic-appointed justices on the other.
Further, it does not help the conservative cries for legitimacy when some of the justices in the conservative majority have been mired in ethics scandals. Alito went back to the pages of the Wall Street Journal opinion page recently to make a ludicrous textualist argument that he need not have reported a free seat on a private jet paid for by a billionaire with business before the court on his way to a free vacation in Alaska because an airplane constitutes “property or facilities … owned by a person,” like staying in someone’s spare bedroom.
Even putting aside the ethics scandals that convince many people that some of the justices in the conservative majority are bending the law for their own purposes, these justices must realize that their judicial interpretations are contested and contestable, especially as they break down more and more on ideological and party lines. They may (and likely do) believe that they have applied fair principles to decide these cases, but as Roberts wrote in Nebraska, “reasonable minds may disagree.” Indeed, when decisions break down over and over again very neatly along the same lines as the divergence of political opinions in all of the biggest cases, it is very hard for the public to see the distinction between law and politics.
If these justices want the public to believe they are acting in good faith, they need to apply the same standard of respect to the decisions of other courts.
That’s a lesson that the conservative justices need to keep in mind next time one of these Moore-type cases comes before it. Hopefully, they don’t face that test with a presidential election hanging in the balance.
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