Gallup poll<\/a> that found that 40 percent of Americans actually approved of the way SCOTUS was handling his job while 58 [percent] disapproved.\u00a0<\/span><\/p>\nIn October, the Heritage Foundation\u2019s John Malcolm interviewed Justice Samuel Alito, and asked him about the court’s legitimacy. Here\u2019s this clip:<\/p>\n
John Malcolm:<\/b> You recently stated that \u201csaying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.\u201d\u00a0<\/span><\/p>\nSo how do you respond to those who say the court has become a nakedly partisan institution and what is the danger of crossing that line?<\/span><\/p>\nJustice Samuel Alito:<\/b> Oh, everybody in this country is free to disagree with our decisions. There is no question about that. Everybody’s free to criticize our reasoning and to do [so] in strong terms. And that certainly is done \u2014 in the media, and in the writings of law professors, and on social media, and in other fora\u2026 There is no question about that.\u00a0<\/span><\/p>\nBut to say that the court is exhibiting a lack of integrity is something quite different. That goes to character. It goes not to agreement or disagreement with the reasoning, it goes to character. And someone also crosses an important line when they say that the court is acting in a way that is illegitimate. I do not think anybody in a position of authority should make that claim lightly. That is not just ordinary criticism. That is something very different.\u00a0<\/span><\/p>\nJS: <\/b>And then, Chief Justice John Roberts has also commented on questioning the legitimacy of the court.<\/span><\/p>\nChief Justice John Roberts:<\/b> I don\u2019t understand the connection between opinions that people disagree with and the legitimacy of the court.\u00a0<\/span><\/p>\nJS:<\/b> [laughs] OK. So what do you make of the justices’ views that the legitimacy of the Supreme Court should basically go unquestioned?<\/span><\/p>\nJR: <\/b>Yeah\u2026<\/span><\/p>\nJS:<\/b> [laughs]<\/span><\/p>\nJR:<\/b> I feel like those comments almost speak for themselves in their ridiculousness. I mean \u2014 no, but really, it\u2019s not that it\u2019s surprising. But I mean, these are smart people, right? Like, these are not dumb people, whatever else there is to say about anybody who sits on the Supreme Court. And could you even imagine that about any other branch of government? I mean, at the end of the day, we\u2019re talking about power here, right? And so it\u2019s our rulers telling us how we\u2019re allowed to react to how we\u2019re being ruled. Right?<\/span><\/p>\nJS: <\/b>[laughs] Right.<\/span><\/p>\nJR:<\/b> And I mean, that\u2019s really the beginning and the end of it. And so what it\u2019s doing, I think, maybe they do have some great counter-argument that they just don\u2019t want to deploy for whatever reason, or maybe it\u2019s a sign that there isn\u2019t an argument. And so therefore, the argument is: We can\u2019t argue and I\u2019m setting the terms of this debate.\u00a0<\/span><\/p>\nAgain, it is a sort of agenda-setting here in the public sphere, though. And so when they\u2019re in the public sphere, and when they are outside, rather, sort of the four corners of their writing, they can seem even less persuasive when they\u2019re kind of trying to convince a regular person about an argument because it just doesn\u2019t make sense. And this isn\u2019t even, I don\u2019t think, a Republican or Democratic thing. This is just, I think, a general commentary about how the law is created and how power is wielded is: Do we look to our elected leaders, the judges who are indirectly, at least, elected, and look to them for how we\u2019re allowed to criticize them? I mean, I just think that to describe that situation is to show how incorrect that argument is.\u00a0<\/span><\/p>\nAnd again, people are free to fall on whatever side of the merits or lack of merits of whatever opinion they want, but to say that you can\u2019t talk about it, I mean, I think that shows a lack of confidence in one\u2019s work. It\u2019s being upset. It\u2019s kind of sore winning in a way, which I think was the theme of probably, Justice Alito, in particular, speeches. And there we saw a little bit, to a lesser degree, of Chief Justice Roberts, who doesn\u2019t really go as far out there as Justice Alito, but for Chief Justice Roberts to say that he doesn\u2019t understand the argument, I think that\u2019s just not true. Because he\u2019s one of our smartest lawyers in some respects, or he\u2019s at least smart enough to not be telling the truth when he says he doesn\u2019t understand something that\u2019s very simple. And if he doesn\u2019t understand that, then that\u2019s a problem. I don\u2019t know what to tell you.<\/span><\/p>\nJS: <\/b>I totally agree. I like your point, too, because it does go back to what you\u2019re saying: It\u2019s like an agenda-setting, telling us we can\u2019t criticize them, while meanwhile, they\u2019re fully stocking the court because they have that power and are able to take these things, which is a very good point. So when you think about: Oh, that was a compromise ruling? Well, it\u2019s like: Well, no, they didn\u2019t have to take it in the first place!\u00a0<\/span><\/p>\nSo to me, it feels like all part of a piece, right? Like, we\u2019re gonna take this and just blow up this docket with these crazy cases, and we\u2019re gonna do some damage. But don\u2019t you dare say that we\u2019re doing damage \u2014 where they\u2019re the ones like fully in control of what they\u2019re doing. And then acting like it\u2019s not fair to criticize them on the back end? I just think it\u2019s kind of ridiculous.<\/span><\/p>\nJR:<\/b> Yeah, I mean, it\u2019s objectively unpersuasive, really.\u00a0<\/span><\/p>\nJS:<\/b> [laughs]\u00a0<\/span><\/p>\nJR: <\/b>And again, look, someone could listen to this and think that I have a certain view and say, therefore, my view about that is subjective in some way. But I really think that no matter who is speaking, when you\u2019re talking about one of the most powerful people in the country, it is just not persuasive to look to them to dictate the terms of public debate. That\u2019s where I land on that.\u00a0<\/span><\/p>\nJS: <\/b>Obviously, we\u2019re not going to be able to cover all the court cases this term in this mini-series, and we\u2019re not even going to be able to get to all of the particularly notable or consequential cases.\u00a0<\/span><\/p>\nSo I wanted to ask you about a few of the cases that we aren\u2019t going to be able to get to, starting with the two affirmative action cases, Students for Fair Admissions, Inc. v. University of North Carolina, and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Can you break down those cases and tell us where we\u2019re at and what the consequences might be?<\/span><\/p>\nJR:<\/b> Sure, it\u2019s fairly simple, which is that the right has been fighting against affirmative action for decades, not super dissimilarly from the Roe discussion we were having.\u00a0<\/span><\/p>\nIf you go back to 2003, there was a ruling that kept affirmative action in place sort of for now. Justice O\u2019Connor, again, then, going back to sort of the swing voice that was there that is no longer there, at least not in those relative terms, said she doesn\u2019t expect affirmative action to be necessary 25 years from now \u2014 I\u2019m paraphrasing what she said. Again, lawyers are not known as math experts, but we\u2019re not quite yet there.\u00a0<\/span><\/p>\nAnd again, we see here with the newly constructed court, setting its agenda to take up cases for the purpose of quite possibly overruling affirmative action once and for all. And so that\u2019s really the gist of it. And the argument suggested that that\u2019s the way it\u2019s going to go \u2014 at the very least, it\u2019s going to be further weakened. Again, sort of similar to the abortion issue in that, coming out of the argument, there\u2019s no question of what the interests are at play; there\u2019s very little debate as to which side is going to win, maybe there\u2019ll be a question as to what the exact words are going to be, but it\u2019s really as simple as interest groups that have been litigating against affirmative action, they have a court that appears prepared to finally take it down, and they just needed to find a case to bring. They\u2019re multiple cases here, and we\u2019re talking about Harvard and UNC that deal with different parts of it, because there\u2019s a private-public distinction. But again, the bottom line is just we\u2019re talking about the use of affirmative action in higher education. And it\u2019s something that the Roberts Court has been skeptical of.\u00a0<\/span><\/p>\nAnd again, going back to the discussion about Chief Justice Roberts, who in some ways has been relatively on the left of its court, the race issue is something that he has been firmly almost as far right as you could be when it comes to this issue. It\u2019s something that he has been passionate about. And it\u2019s a theme that we\u2019ve seen in multiple cases this term, this notion of the Constitution being colorblind, whether you\u2019re just not allowed to take race into account. And so that\u2019s, in some ways, the theme of the Roberts Court, or one of them anyway, is in pushing forward this colorblind version of the Constitution and the affirmative action cases are just one of the cases that we see that notion at play this term. And there are others, too.<\/span><\/p>\nJS:<\/b> Except for, I mean, the Constitution by nature is not colorblind. [laughs] Look at the Reconstruction amendments. I mean, don\u2019t they speak directly to race, right? That we come out of the Civil War, and how do we get the 14th Amendment if you\u2019re not saying it\u2019s race-conscious?\u00a0<\/span><\/p>\nJR: <\/b>And Justice Jackson brought that point up at oral argument. And it\u2019s been described by some after she did it as sort of liberal originalism \u2014 using the tools of the right against them, sort of thing. I don\u2019t know whether it\u2019s originalism or just looking at what the text of the amendment says, and just taking the reality into account. But she has been at the forefront of speaking against this colorblind notion of the Constitution across multiple cases this term, not just in the affirmative action case. But she brings up almost the exact point that you do about Reconstruction, and it was done for this purpose. You can\u2019t talk about these issues without talking about the history of slavery in this country, but in the way that on the right, you don\u2019t want to talk about that in the political sphere, we see that same manifestation in the court, too. And so that view is being laundered through this notion of a colorblind Constitution. And we see that in the Supreme Court cases, that political idea of being ignorant to history as well.\u00a0<\/span><\/p>\nJS:<\/b> Yeah.<\/span><\/p>\nThey\u2019ve already heard a voting rights case as well, the Merrill v. Milligan. What can you tell us about Merrill v. Milligan Court case again?<\/span><\/p>\nJR:<\/b> Right, so we\u2019re on the same theme here, again.<\/span><\/p>\nJS: <\/b>[laughs] Yep.<\/span><\/p>\nJR:<\/b> We\u2019re talking about the Voting Rights Act, which arguably a previous case was one of, if not the most significant opinions from the Roberts Court, which is in the Shelby County case, which in 2013, I believe, struck down a previous part of the Voting Rights Act. And that was Chief Justice Roberts writing that decision, and so he has been at the forefront of that idea, even when he was a young lawyer in the Reagan era, this was a cause that was dear to him. And so he has been able to accomplish that now that he\u2019s on the court.\u00a0<\/span><\/p>\nAnd so to make a long story short, you had part of the Voting Rights Act go down in Shelby County.\u00a0<\/span><\/p>\nAnd now we have another piece of that that is bolstering up what\u2019s left, in a sense, of the Voting Rights Act, or at least another piece of it. And that\u2019s again in danger as well. So it\u2019s the court further chipping away at the Voting Rights Act \u2014 again, against the backdrop of this notion of a colorblind Constitution, that race should or shouldn\u2019t be taken into account where you\u2019re drawing legislative districts and that sort of thing.\u00a0<\/span><\/p>\nBut that\u2019s the general idea, basically: Voting Rights Act further in danger again, this term. That\u2019s the tagline I think, from that case,<\/span><\/p>\nJS: <\/b>Yeah. This is kind of how dorky I am. I literally remember where I was the day that Shelby County came down, and I was just, I lived in Texas \u2014 I lived in Texas for a long time \u2014 and I thought: Oh, no.\u00a0<\/span><\/p>\nBecause what was at issue in Shelby County was the pre-clearance, right? Where a number of states had to basically get their voting changes pre-approved by the federal government because, I don\u2019t know, spoiler alert, they had a giant racist history, right? Predominantly states in the South, but I don\u2019t think it was exclusively, was it? But I think it\u2019s predominantly southern states.\u00a0<\/span><\/p>\nSo when that went, I just remember thinking: Oh, God \u2014 because the Texas Legislature, they just been for years trying to get rid of one person, one vote. And, it just was like, ugh. That\u2019s why I remember it.\u00a0<\/span><\/p>\n