The Supreme Court seems jittery about its own legitimacy

The Legitimacy of the Supreme Court. What Do We Really Need to Disturb? A Conservative Comment on Dobbs, Roberts, and Alito

The conservative majority on the Supreme Court is more than ready to abuse its power and authority. The question is whether the American public is willing, through its representatives in Congress, to discipline the court — to remind it of the actual scope of its power and relegate it to a less central place in our constitutional order.

The court’s stature is precious and can be lost if the court begins to treat the public as mere subjects rather than partners, or if it retreats too far away from the public.

As the dissent in Dobbs noted: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

The court is not made up of partisan hacks, as Justice Amy ConeyBarrett said last year while speaking at the McConnell Center at the University of Louisville.

That the justices are discussing the legitimacy of the Supreme Court in the open is reason enough for us to discuss the legitimacy of the Supreme Court as well. What is striking about the comment from Thomas, is how it establishes the challenge to the court’s legitimacy in the inside baseball surrounding the leak rather than public discontent with its decisions that Kagan spoke about. In a similar disconnect, Roberts and Alito both take for granted the legitimacy of the Supreme Court and its decisions, as if its power were inherent to the institution — part of the natural order of things rather than something that’s been mediated by politics throughout the court’s history. Roberts asserts that the court has the right to say what the law is, even if the institution itself isn’t accountable to anyone.

Among the liberal justices, by contrast, reform is acknowledged only as something to pre-empt through exercises in self-restraint. The Supreme Court should not be the arbiter of its own power to do good or ill even if it means locking horns with reactionary colleagues and agreeing with them.

Pointing out hypocrisy is an effective way of doing so. The most striking feature of all this liberal dissent is the fact that it is fundamentally conservative. liberals can choose not to do other things in dissent if they want to buck up an institution in crisis. Is it possible for conservatives to serve liberal ends if there were more liberal votes?

The Case for Cameras: Report on a Case Study in the USA Today Advisory Board of Contributors, Raul A.R. Eyes

There is an attorney on the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are his own. Read more opinion at CNN.

Oral arguments resume at the Supreme Court next week, with student debt relief, immigration and labor relations among the cases on the agenda. The top US court will hear from some of the nation’s finest attorneys on issues impacting the daily lives of Americans.

Any downside of cameras is outweighed by the immense benefits of judicial openness. The high court does not seem to be interested in reform. The only way to get to that outcome comes via the legislative branch. bipartisan legislation for camera access at the high court was introduced in 2021, but died before it could be enacted. The measure was not able to advance in Congress.

Supreme Court proceedings are no secret: The court already provides transcripts and audio recordings of oral arguments. And 50 seats are set aside for the general public to attend oral arguments in the courtroom.

Source: https://www.cnn.com/2023/01/07/opinions/supreme-court-video-cameras-reyes/index.html

Why is the Supreme Court so Close to the Well-Connected? Public Perceptions and Challenges Against Delusion, Hate Speech, and Other Phenomena

And competition for the limited number of seats can be fierce, often involving lining up in the early morning hours – or sometimes even camping out the night before – to be permitted entry.

Why should access to oral arguments be limited to the well-connected? Who could possibly be in a position to spend hours at the Supreme Court if they lived in or near Washington, DC?

And there can be little doubt about public interest in such proceedings: Americans have shown they’re willing to tune into politics when afforded the opportunity. Millions of people tuned in for the January 6 committee hearings, for Trump’s first impeachment trial and for his second second impeachment trial.

The opposite is true in terms of the public perception. The trust in the Supreme Court is low. According to Gallup, only 4 in 10 Americans say they approve of how the Supreme Court is handling its job; nearly 6 in 10 disapprove.

In his annual report on the state of the federal judiciary, Roberts failed to address controversies swirling around the court, including last year’s leak of a draft copy of the Dobbs decision prior to its official announcement; a New York Times report alleging the leak of the 2014 Hobby Lobby opinion; and efforts by Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to get Republican officials to challenge the outcome of the 2020 presidential election – which Thomas said after the fact that she regretted.

As the high court grapples with a profound legitimacy crisis, bringing transparency into its decision-making process would be good for the public – and for the court itself. Opening its deliberations to greater public scrutiny can only help this beleaguered institution.

One of the landmark free speech rulings, New York Times v. Sullivan, may be reconsidered due to the internet age. The 1964 opinion requires public officials to prove actual malice in order to file a defamation lawsuit. (The court later extended this requirement to public figures.) The court set a high bar because they recognized a principle that debate on public issues should be wide-open.

More than 800 miles to the south, there is a Florida state legislator who is proposing a bill that would make it more difficult for people to bring defamation lawsuits. A federal judge struck down a New York law that regulates online hate speech. A California Covid misinformation law was nixed by a judge. The Texas and Florida laws that limit the ability of social media platforms to moderate user content have been brought before the justices in DC.

But some justices are unconvinced that Sullivan remains necessary for that commitment. Justice Clarence Thomas wrote three times that he wanted the Supreme Court to revisit Sullivan, pointing out the effects it had on real-world consequences like the proliferation of PizzaGate. Changes brought by social media are what led Justice Neil Gorsuch to join his call. Private citizens can now become public figures on social media. “Individuals can be deemed ‘famous’ because of their notoriety in certain channels of our now-highly segmented media even as they remain unknown in most.”

Under the bill, a public figure would no longer need to show actual malice to win a defamation case if the allegation against the figure wasn’t related to the reason for the person’s public status. If a news organization publishes an investigation about a person who is publicly known for being president or governor, that report wouldn’t be covered by Sullivan’s special liability protection.

The bill goes much further than this attempt to hobble the press. It is obvious that the new rules would apply to any single “utterance on the internet,” which could include: a comment made at a school board meeting, an online post written by anyone, or a presentation made to an audience.

In a direct attack on a key aspect of free expression, it says that whenever someone is accused of discriminating against others on the basis of race, gender or sexual orientation, that accusation is automatically considered enough to sue for defamation. A defamation lawsuit can be filed if a person is accused of bigotry due to their sexual orientation or gender identity based on personal religious or scientific beliefs. A minimum of $35,000 would be the penalty for calling someone a bigot.

DeSantis, Kagan, and the State of the Art: Reconciling the High Court and the Supreme Court to a Proposed Republican Party Supremum

Mr. DeSantis, who appears to be preparing for a 2024 presidential campaign, has been railing against press freedoms for several years in a clear appeal to likely Republican primary voters. The bill has a good chance of passing and was filed in the State Senate with a milder version than the one in the Florida House.

If enacted, the House bill would almost instantly be challenged in court, but its backers are counting on that. In public statements, they have said they want the bill to be used as a vehicle to get the Supreme Court to overturn New York Times v. Sullivan and have noted that two justices, Clarence Thomas and Neil Gorsuch, have called on the court to reconsider that decision. The current court has repeatedly demonstrated that it can’t be counted on to respect long-term precedents that are widely supported by the public.

There may be room for discussion on the precise definition of “public figure,” which has been interpreted in various ways by the Supreme Court and lower courts over the past six decades. Elena Kagan was interested in determining if the term had become too broad in the years after Sullivan, despite her overall approval of the decision.

A sledgehammer bill like the one in Florida, however, wielded for transparent political reasons, would create enormous damage on the way to the high court, particularly if other states decide to copy its language. In 1964, Justice William J. Brennan Jr., who wrote the court’s opinion, said it was based on “the principle that debate on public issues should be uninhibited, robust and wide open.” That may well include, he wrote, “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” That principle has not changed through the decades, and any citizen who treasures the right to speak freely should resist politicians like Mr. DeSantis who want to silence them.