I suppose that John Roberts, chief justice of the Supreme Court, is attempting to recapture a level of decorum and legitimacy—particularly legitimacy—by calling for an investigation into the leak of the draft opinion delivered by Justice Samuel Alito. However, the legitimacy of the Supreme Court is already compromised.
Never mind that Roberts appears more upset about the leak of the opinion versus the opinion itself—that alone delegitimizes the moral standing the court. But the Court is illegitimate merely by the process in which justices are nominated.
Prospective justices are nominated by the president — an executive elected not by the popular vote but by electoral vote. So when Donald Trump nominated Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, they did not reflect the popular will of the people – only of the segment that elected Trump.
The court is also illegitimate because the process was hijacked by Sen. Mitch McConnell, R-Ky.
Gorsuch was supposed to be Merrick Garland but McConnell didn’t bring Garland, President Barack Obama’s nominee, up for a vote. He, and Republicans, effectively stole a Supreme Court seat. The court would still be 5-4 conservative-to-liberal (I use those terms loosely) had Obama’s nominee been confirmed.
The court is also delegitimized by its recent decisions outlined in Roberts’ opinions—namely his opinions in Citizens United and Shelby v. Holder, where he gave rationale for why corporations and outside groups can spend unlimited amounts of money on elections and that voter protections for Black people, as laid out by the Voting Rights Act of 1965, were unconstitutional. Those two decisions helped facilitate where we are today—with the court now even more of a political tool.
Those are just recent reasons why the Supreme Court is illegitimate. History gives us even more reasons.
The Supreme Court is illegitimate because for the longest time, it was made up of white cis-gender males—as if they are the wisdom of the country Maybe so for white men. They’ve shaped the way this country has looked, a white settler colonial project, since its inception. Don’t let the diversity fool you. Even after the addition of Justice Katanji Brown Jackson, white people will remain the majority of the court—four of those justices being white males and each of them, conservative …
… and Clarence Thomas.
When the court ruled as per Roger Taney in Scott v. Sanford that Black people had no rights that a white person was bound to respect, it took a civil war for Black folks to receive the “respect” of the government for our rights. When the Court ruled in Plessy v. Ferguson that segregation does not violate the 14th amendment, it took an entire movement to facilitate the Civil Rights Act of 1964.
The people—Black people—have often served as the conscience of the court.
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The Supreme Court is also illegitimate, and this may be the most impactful reason, because with everything mentioned above, its existence is proof that human rights, within the context of American jurisprudence, are extinctive. The court can grant a right and arbitrarily take it away. This appears to be the case with Roe v. Wade. It’s most certainly the case for Shelby.
How much trust or faith should the American people, Black people especially, put in a system of “justice” where our rights can be arbitrarily taken away from us simply because someone disagrees with our humanity? How is such a court legitimate?
Sadly, many women are answering those questions for themselves. I suppose that John Roberts isn’t as concerned with answering those questions.
Photo: Then-Supreme Court Justice nominee John Roberts acknowledges reporters as he crosses the street in front of his home in Chevy Chase, Md., Sept. 29, 2005. (AP Photo/Charles Dharapak)
Rann Miller is the director of anti-bias and DEI initiatives as well as a high school social studies teacher for a school district located in Southern New Jersey. He’s also a freelance writer and founder of the Urban Education Mixtape, supporting urban educators and parents of students in urban schools. You can follow him on Twitter @UrbanEdDJ .