Chief Justice John Roberts wants Americans to believe that the Supreme Court is not political.
That would be easier if the court were not deciding the country’s most politically explosive questions in ways that so reliably align with one ideological direction.
Roberts said at a judicial conference this week that Americans wrongly view the justices as “political actors.” They are applying law rather than making policy, he insisted. In some ways, that sounds institutional and reassuring. But at this point, it also sounds like damage control from a chief justice watching public confidence erode in the court he’s led for more than two decades.
The problem is not that Americans misunderstand what the court is doing, but rather that Americans can plainly see what the court is doing.
The problem is not that Americans misunderstand what the court is doing, but rather that Americans can plainly see what the court is doing.
The public has lived through the pattern. Roe v. Wade fell after almost 50 years of constitutional protection for abortion rights. Affirmative action in higher education was dismantled after roughly 45 years. Modern gun laws were thrown into uncertainty in 2022 because the court said they must be justified by historical analogies from a very different America. One of the most important protections in the Voting Rights Act was recently disabled even though Congress had overwhelmingly renewed it. Campaign finance law has been transformed in a way that allows far more outside money into elections. Public sector unions were weakened. Federal agencies lost power to regulate major issues involving the environment, the economy, health and workplace safety.
Across abortion, guns, race, voting, labor, regulation, money, religion and presidential power, the result has been the same: less power for elected lawmakers and federal agencies; more power for judges, wealthy interests, religious claimants, gun rights advocates and presidents.
At some point, Chief Justice Roberts, the public is not misunderstanding the court. The public is recognizing the pattern.
To be clear, conservative jurisprudence is not inherently illegitimate. Not at all. Textualism, originalism, skepticism of agency power and narrower views of substantive due process are all serious judicial philosophies. The issue is that the court’s philosophy increasingly appears to have a trapdoor: Whenever doctrine gets in the way of the desired result, another “doctrine” conveniently opens beneath it.
In Bruen, the court said modern gun laws are suspect unless the government can point to similar regulations from the 18th or 19th century — as if today’s elected officials must regulate AR-15s by analogy to muskets. In Trump v. United States, by contrast, the court recognized broad presidential immunity, even though the Constitution never says presidents are immune from criminal prosecution. In Dobbs, the court said abortion rights were not deeply rooted enough in American history to receive constitutional protection, while elsewhere the court has been far more willing to recognize constitutional protection for interests favored by the conservative legal movement, including expansive gun rights, religious liberty claims and corporate political spending. And in some cases, the court has told federal agencies that they cannot regulate major economic or political issues unless Congress speaks with unusual clarity — even though that rule itself is largely a judicial invention. The result is not one consistent philosophy. It is a moving target: history when history helps, text when text helps, restraint when restraint helps, and judicial power when judicial power helps.
The same pattern appears in cases that sound technical but reveal the deeper problem: The rationale changes, but the destination does not.
Dobbs is the clearest example. For decades, abortion opponents worked through elections, judicial nominations, advocacy organizations and state legislatures to build a court capable of overturning Roe. Once the votes existed, the court did exactly that. Roberts can call it constitutional interpretation. But to millions of Americans, it looked like the successful completion of a 50-year political project.
The same pattern appears in cases that sound technical but reveal the deeper problem: The rationale changes, but the destination does not. In Citizens United, the court preached free speech and unleashed far more outside money into elections. In Shelby County, the court invoked state sovereignty to weaken a major voting rights safeguard that Congress had overwhelmingly renewed. In Loper Bright, the court said agencies had too much power and transferred more authority to judges. Sometimes the court says elected officials should decide. Sometimes it says agencies cannot. Sometimes it says states matter most. Sometimes it overrides state choices. Sometimes history controls. Sometimes text controls. Sometimes neither does. The only thing that remains consistent is the outcome.
The 2024 Trump immunity decision may have been the moment when the court’s institutional mask slipped most visibly. A former president facing criminal prosecution while seeking re-election received sweeping protections from a court whose majority was appointed by Republican presidents, including three justices appointed by Trump himself. Roberts may insist that legal principles drove the analysis. But the public is not irrational for noticing the optics.
The same is true of the court’s ethics controversies.
Justice Clarence Thomas accepted luxury vacations and other hospitality from billionaire benefactors. Flags associated with election denial movements were flown at homes owned by Justice Samuel Alito. The court resisted adopting a formal ethics code until public pressure became overwhelming. Even now, there is no meaningful external enforcement mechanism governing the country’s most powerful judges.
The institution, whose members have life tenure, immense national authority, ideologically orchestrated confirmation battles and billionaire-adjacent access, issues increasingly predictable outcomes in culture war cases, so it cannot plausibly act shocked when Americans question whether politics is influencing outcomes.
The court’s increasingly aggressive use of its emergency “shadow docket” deepens the problem. Major national disputes involving immigration, elections, pandemic restrictions, executions and federal regulations rise or fall through unsigned or thinly reasoned emergency orders issued without the ordinary deliberative process.
And all of this is happening against the backdrop of nakedly political judicial confirmations.
In 2016, Merrick Garland was denied even a confirmation hearing because Republicans announced that election-year vacancies should be filled by the next president. Four years later, Amy Coney Barrett was confirmed days before a presidential election under the exact opposite rationale. There was no neutral principle at work. The public understood that perfectly well.
That sequence matters because Roberts’ argument ultimately depends on institutional trust. Courts’ authority depends on public belief that decisions emerge from legal principle rather than ideological loyalty.
But judicial legitimacy is preserved when the institution behaves in ways that make neutrality plausible.
And when the court repeatedly intervenes in the country’s most divisive political controversies through ideologically predictable coalitions, reshapes American life in one consistent direction and then insists that all of this is merely neutral law, the problem is not public misunderstanding.
The problem is that the court keeps telling Americans not to believe what they can plainly see.
Duncan Levin is a criminal defense attorney and former federal prosecutor who serves as a Lecturer on Law at Harvard Law School and is a frequent contributor to MS NOW.