“Who Cares About the Supreme Court’s Legitimacy?”

Linda Greenhouse in the NYT:

What changed my mind about writing about this issue again was the administration’s response to the request by the plaintiffs, a coalition of immigrant rights groups, to Judge Furman for “sanctions or other appropriate relief” against a Justice Department official and an expert administration witness who, the newly revealed documents indicated, testified untruthfully about the origin of the citizenship question. The plaintiffs have lodged a copy of their District Court filing with the Supreme Court.

The administration’s response, a copy of which was also sent to the Supreme Court, was in most respects unsurprising. It described the new material as unauthenticated and inadmissible hearsay, and it insists that the plaintiffs’ interpretation of the citizenship question’s origin is “not only false, but legally irrelevant as both a procedural and substantive matter.”

(In a hearing Thursday, Judge Furman deferred until after the Supreme Court’s expected ruling any decision on imposing sanctions. or conducting further discovery.)

What got my attention was the anti-media theme running through the administration’s five-page filing. The Justice Department lawyers who signed the cover letter to Judge Furman complained that along with the plaintiffs’ motion for sanctions was the “near-simultaneous publication of an accompanying article in The New York Times” — as if news coverage of a public court filing cast a cloud over the propriety of the filing, rather than the documents’ revelations casting a cloud over the propriety of the administration’s litigating position. The administration lawyers complained further that the plaintiffs “appear to have spent more time coordinating with the media — the detailed Times article was posted online less than an hour after the E.C.F. filing notice — than performing the requisite investigation.” (E.C.F. stands for electronic court filing.)…

Yet the steady flow of right-wing commentary mocking concerns about the Supreme Court’s legitimacy (and I readily admit to having added my voice to those concerns) leaves me with this thought: What about the other justices? Why is it assumed on the right that Chief Justice Roberts is the only conservative on the court who has its welfare in view and who worries about the loss of public confidence if the justices come to be seen as mere politicians in robes?

Maybe the question answers itself. (Speaking of election law, it was Justice Clarence Thomas who wrote in a separate opinion three years ago that he regarded the court’s “one person, one vote” jurisprudence as lacking a “sound basis.”) Justice Samuel Alito? The new justices, Neil Gorsuch and Brett Kavanaugh? Shouldn’t we assume that they care too? And if not, why not? As the clock ticks toward the 2020 census, just asking.


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