Courts are sometime perceived as the weakest of the three branches of government because they can’t raise taxes, write the budget or direct coercive action. Instead the power of the courts is a soft power of institutional legitimacy. Their decisions are respected and acquiesced to because they part of a long tradition based on accepted moral and legal principle, not personal greed, self-interest or intense religious belief. The job of the US Supreme Court is to guarantee constitutional legitimacy to the laws made by congress and thus provide constitutional authority to the whole federal government. What happens when the Supreme Court can’t bind the country together with a shared framework of secular authority? The Dred Scott case is one such fracture where the Court chose a side in the national debate about slavery and undermined the possibility of national compromise which pitched the country into civil war.

The country is fracturing again, and over the last year various several respected judges have been sending out alarms that the activist Roberts Court is eroding this soft power by choosing sides in a way that undermines the constitutional legitimacy needed for the survival of a democratic federal government.

To start with, on February 20, Justice Sotomayor wrote a scathing dissent, accusing the Court of being too willing to accept emergency petitions from the Trump administration which permit controversial policies to go into effect, end running normal Supreme Court due process and fair play.

Sotomayor issues scathing dissent in Supreme Court order that could reshape legal immigration

Secondly, Lynn S. Adelman, a U.S. district judge in Milwaukee,  published a critique of the Roberts Court, claiming that it has been ignoring traditional court process to jam through a political agenda, on several fronts, including gutting the Voting Rights Act and reinforcing various voter suppression activities by conservative states.

This paper, The Roberts Court’s Assault on Democracy, has been published in the Harvard Law and Policy Review.

Perhaps the most focused critique of the Roberts Court has come from Former Hawaii state Judge James Dannenberg who resigned from the Supreme Court Bar in protest of the Court’s shift under Chief Justice John Roberts from impartiality to blatant activism. In his letter of resignation to Roberts is short and succinct enough to be read in full:

One First Street, N.E.

Washington, D.C. 20543

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

Summary:

When the constitution was written, democratic government was a controversial idea, and the founders were focused on providing a legal infrastructure which would guarantee the new government institutions an authority that the King had lost due to the corrosive power in enlightenment thought. It is perhaps that enlightenment challenge to religious or dictatorial absolutism that makes the thought of the founders so discomforting to today’s right wing fanatics. They have no need for courts at all.