Courts

John Roberts Is A Man In Desperate Search Of Legitimacy

Maybe if his colleagues weren't so excited to light precedent on fire, the Court's legitimacy wouldn't be in the tank.

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Congressional Leaders Host Arrival Ceremony At Capitol For Late President George H.W. Bush

(Photo by Jabin Botsford – Pool/Getty Images)

Legitimate institutions don’t go around bragging how they’re legitimate because it is understood. Illegitimate institutions, however, really like to yell and scream about their authority. Think about it, in elementary school the green substitute teacher would urgently raise their voice in a futile bid for the class’s attention yet the battle-axe from across the hall that probably taught your grandmother could silence the class with a single look. You can’t convince people of your legitimacy, it is earned.

On that note, on Friday, Chief Justice John Roberts spoke at the Bench & Bar Conference of the U.S. Court of Appeals for the 10th Circuit. And you could tell, despite not facing a midterm election himself, the Court’s sinking poll numbers were on his mind. As reported by the Washington Post, Roberts used his time to defend the legitimacy of the Court:

“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts told a gathering of judges and lawyers in Colorado Springs. But he said that disagreement with the court’s role of deciding what the law is has transformed into criticism of its legitimacy.

“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,” said Roberts, who added, to laughter, “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 criticizing the legitimacy of the court.”

But, here’s where we know John Roberts is fibbing, at least a little bit. Everything we know about how the awful Dobbs v. Jackson Women’s Health decision went down is that Roberts *knew* stripping rights away from folks after 50 years of established precedent was going to be a disaster. That’s why he wrote a death-by-a-thousand-cuts concurrence. It’s why there are rampant rumors that Roberts tried to convince a fellow conservative to sign onto his decision and what fuels the speculation that someone on the right was behind the leak of the draft Dobbs decision. Sam Alito’s majority opinion in that case was designed to be a flame-on moment to display the power of the Court’s far-right majority… a majority which was totally and completely *legitimately* earned.

Except not.

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Because while for many people overturning Roe v. Wade was the final nail in Court’s legitimacy coffin, something was rotten in Denmark before that.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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