To hear the Republican-appointed Supreme Court justices tell it, they are not partisan hacks. And it is unfair for anyone to suggest otherwise.
“This Court is not comprised of a bunch of partisan hacks,” Justice Amy Coney Barrett insisted in a 2021 speech at the University of Louisville’s McConnell Center, named after Senator Mitch McConnell. “Judicial philosophies are not the same as political parties.”
The driving force here, as always, is those perfidious liberals in the media. “The media makes it sound as though you are just always going right to your personal preference,” Justice Clarence Thomas complained in 2021. That same year, Justice Samuel Alito complained about “unprecedented efforts to intimidate the court and to damage it as an independent institution”—in response to media coverage that properly identified the Court’s upholding a Texas abortion ban as a nullification of Roe v. Wade in the state and a preview of the overturning of Roe itself.
As it turns out, the Court’s liberal critics aren’t the only ones who think the Court is made up of partisan hacks. Despite—or perhaps because of—all the odes to judicial independence that the justices have delivered at fancy dinners hosted by right-wing institutions and filled with wealthy conservative donors, Republicans think so too.
Alabama’s reaction to a Supreme Court ruling invalidating its racially gerrymandered map of congressional districts provides an illuminating example. Earlier this year, in a surprise ruling, Chief Justice John Roberts and Justice Brett Kavanaugh joined with the Court’s three Democratic appointees to uphold a challenge to the map under the Voting Rights Act contending that Alabama was disenfranchising Black voters. The requirement to draw majority-minority districts under certain circumstances exists because of the long history of American political parties seeking to diminish the voting power of ethnic minorities through racial gerrymandering. Both Alabama’s original actions and its defiance of a direct Supreme Court order testify to the necessity of the Voting Rights Act, despite the Roberts Court’s long record of hostility towards it.
The Court affirmed the lower-court ruling that ordered the state to redraw its congressional map to include two districts “in which Black voters either comprise a voting-age majority or something quite close to it,” which would alter the partisan balance of the state’s delegation by adding a second likely Democratic seat. Instead, Alabama Republicans simply drew another district with a white majority, openly defying the courts.
The commentators and outlets that usually describe criticism of the Court’s rulings as “delegitimization” were quiet about a state openly defying the rule of law. Perhaps that’s because Alabama was doing so on behalf of a right-wing cause—electing more Republicans to Congress. A federal court then told Alabama to comply with the Supreme Court decision, noting that “we have now said twice that this Voting Rights Act case is not close. And we are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires.”
On Monday the federal court in Alabama denied an emergency application for a stay of its ruling, while noting that Alabama’s secretary of state had offered no reason that Alabama would be likely to prevail in its case. “The Secretary’s assertion that he is ‘overwhelmingly’ likely to prevail on appeal is as bare as it is bold,” the three-judge panel wrote. “It comprises only three sentences crafted at the highest level of abstraction with virtually no citations.”
Why did Alabama choose first to defy the district court, and then to file an appeal with so little substance? It seems pretty obvious: Alabama thinks it will win if the case goes back to the Supreme Court, because the Supreme Court is full of right-wing hacks. Again, it is not liberals who are operating on this belief. It is not left-wing trolls on social media. It is the Republicans governing the state of Alabama. The conservative legal movement spent decades building this Supreme Court majority, the GOP expects more returns on its investment.
“The case may appear to involve a set of technical questions about one state’s legislative map. But it is more fundamentally about whether the Supreme Court should still be viewed as in any sense standing outside politics,” Kate Shaw writes in The New York Times. If the justices accept Alabama’s conduct, “defiance by other political actors, both left and right, can be expected, and will be justified.”
The Alabama case offers an easy chance for Roberts and Kavanaugh—and even the other conservative justices who opposed the original decision—to defend the Court’s legitimacy. All they have to do is unanimously tell Alabama to follow the law. Alabama’s confidence that they will not do this shows that the perception of the Court as populated by partisan Republicans is a matter of firm ideological consensus. The factions simply disagree about whether this is good or bad.
This does not mean Alabama’s confidence is merited. In this particular case, I would expect a majority of the Court to side with its institutional interest in pretending that it is guided by the law rather than ideology and partisanship. Roberts and Kavanaugh seem likely to rule against Alabama again, if only to deny the implication of the state’s request—that the high court is akin to a slightly disobedient hound that merely needs to be told to sit a second time. It has rejected such brazen requests before, including in 2020, when Donald Trump’s allies all but asked the Trump-appointed justices to overturn the election.
Like the original ruling, telling Alabama to follow the law a second time would not change the fact that the main divide on the Court is whether to dismantle the New Deal and the Great Society as rapidly as possible, as Justices Thomas and Alito would like, or piecemeal, as Roberts would prefer.
All of this shows that critics of the Supreme Court majority are not alone in believing that it includes a bunch of partisan hacks. The majority’s political allies think so too. They just happen to like it. If the justices truly deplore this impression, they might spend a little time asking themselves what they’ve done to create such a commonly shared consensus.
