Jamelle Bouie thinks the Supreme Court is arrogant and unaccountable to the public. Is that the real problem with the Court?
The right would (and did) make the same case against the Warren Court, so judicial independence is not really the issue. History will judge the Roberts Court harshly, not because it was indifferent to the transient will of the electorate, but because it imposed a partisan agenda in the following ways:
- By disregarding normal standing and ripeness questions and deciding issues that never should have come before the Court;
- By deliberately distorting the factual record in some cases;
- By inventing a vague new doctrine, “major questions,” out of thin air and using it to invalidate administrative decisions to which it was ideologically opposed; and
- By cherry-picking historical evidence, particularly in cases involving the Second Amendment.
Twenty years from now, I suspect there will be as much pressure to overrule key Roberts Court decisions as there was to overturn Roe over the last two decades. Alito and Thomas will be to the left what Douglas and Brennan were to the right fifty years ago.