It Feels as if Liberal Justices Are Powerless. But Their Dissents Can Actually Get Us Out of This.

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A new Supreme Court term officially begins on Monday, but the justices never really took a break: All summer long, they’ve used the shadow docket to radically alter the law with little or no explanation, almost always in President Donald Trump’s favor. These aggressive interventions have drawn exasperated objections from dissenting justices and lower-court judges, who are left to decipher what the Republican-appointed supermajority is doing. Their pushback has sparked a new debate over just how bluntly sitting jurists should condemn the high court—and what purpose their protests are meant to serve.

On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed this increasingly pointed backlash from within the judiciary with Vox’s Ian Millhiser. A preview of their conversation, below, has been edited and condensed for clarity.

Mark Joseph Stern: How much and how often should the dissenting justices and lower-court judges write about the fact that the Supreme Court’s Republican appointees seem to be in the tank for Donald Trump? We’re seeing^[2] astonishing language^[3] coming from judges^[4], some of whom have never really used their voices in these ways. Does it embarrass the judiciary? Create a really important record for history? What should we make of it?

Ian Millhiser: I think judges should criticize those justices within the confines of judicial norms. I would not, if I were a lower-court judge, say: “The Republican justices are doing this because they’re Republicans.” I would say: “It is my task to follow the orders of the Supreme Court, and I am incapable of doing so because the court is not explaining itself—and when it does explain itself, the rules it announces are inconsistent and incoherent.” And the reason why I think that’s valuable is because there’s this rare thing in the law called the anti-canon^[5]. There are some cases that were overruled in the past that we just don’t talk about. And then there are a handful of cases—Dred Scott, Lochner, Korematsu, Hammer v. Dagenhart—that all of us were taught in law school as examples of how a judge should never behave. Those are the anti-canon. Part of being welcomed into the legal priesthood is that you learn that these cases are embarrassing.

I think that what we want 30 or 40 years from now is for much of what the Roberts court has done to be viewed as embarrassing. Trump v. United States, the presidential immunity decision, should be anti-canon^[6]. The only way that a lawyer should cite Trump v. United States is to compare their opponent’s argument to it and say: “Your argument cannot possibly be correct because if it is, then Trump v. United States was right, and that is untenable.” That is a thing that happens in law. Cases become anti-canon. They aren’t just overruled. They are the exemplars that we hold up as something that’s wrong and must never happen again. The way that things become anti-canon is that legal elites just don’t drop the subject. They keep coming back to it. The most important thing is that justices themselves keep coming back to it in their dissents.

So the Democratic justices should keep dissenting and saying: “These decisions are wrong. Trump v. United States is wrong. The major-questions doctrine is wrong and should be overruled.” Lower-court judges should criticize these decisions because that emboldens people in the academy to write articles saying: “Yes, this is very bad. This should be anti-canonized.” And then the best-case scenario is not that Brett Kavanaugh and Amy Coney Barrett are going to wake up someday and realize the error of their ways. It’s that, at some point in the future, we could have a very different court. And we want that court to feel empowered not just to try to distinguish or limit these cases but to overrule them and say: “This decision was so wrong that anything that resembles it—anything that has the taint of it—is anathema.”

Dahlia Lithwick: Can I push on what the outer limit of that kind of discourse is? We’re seeing judges around the country go beyond just saying “I’m trying to follow the law.” We’re getting lengthy discursions^[8] on: “Why does ICE wear masks? The klan wore masks!” We’re getting way outside the outer bounds of what the case itself is about. Part of what is rattling folks is that it leeches into calling the president an authoritarian. That’s separate and apart from “I’m just trying to do my job, and the court should help me do my job.” So I’m just curious if there’s some weird middle ground that dissenting justices and lower-court judges need to find so that it doesn’t look like name-calling or editorializing?

Stern: I do want to say that Republican-appointed judges have already shattered^[9] all the norms^[10] around this with outrageous, openly partisan rhetoric condemning Joe Biden, condemning the Democratic Party, and railing against Biden’s policies. There is no limit to what these judges will say^[11] in their campaign for a Supreme Court seat. Focusing only on left-leaning judges misses the fact that this Rubicon has been crossed. We’ve also seen Republican-appointed judges on the lower courts condemn Supreme Court decisions^[12] and essentially refuse to abide^[13] by them. They have done all of that already. Those norms are gone.

So the debate about what left-leaning judges should do strikes me as kind of quaint. But my view is that we should let a thousand flowers bloom. I think that when Justice Todd Eddins of the Hawaii Supreme Court says, in so many words, that John Roberts and his comrades are a bunch of clowns in robes^[14], that makes room for Judge James Wynn on the 4^th Circuit to say that^[15] the Supreme Court is leaving him “flailing” in “limbo.” And that leaves room for Judge Allison Burroughs in Massachusetts to tell the justices^[16] that it’s really not helpful to condemn lower courts when they can’t follow shadow docket orders. Justice Ketanji Brown Jackson’s scathing opinions leave room for Justice Elena Kagan to write more-targeted dissents. There is a continuum here, and it is good to have all of these voices in the mix. I am not concerned that any of them are taking it too far.

Millhiser: I’ll inject one minor note of caution. I don’t really disagree very much with that; I thought Jackson’s Calvinball dissent^[21] was one of the best dissents we’ve seen from the court in my lifetime. But the reason I’m advocating for some caution in judicial rhetoric is that lawyers are precious little snowflakes. We love our norms so very much. And if judges don’t behave in a precious way, there are a lot of lawyers out there who will get up in their feelings and react negatively to it. If the project we want to achieve here is to anti-canonize so much of what the Roberts court has done, the people who control that are legal elites. That is a conversation that’s being held among people who all went to law school and were brainwashed to never, ever, ever speak ill of the justices—because, my God, then they might rule against your client.

Given that reality, the people who have the most influence in this conversation are those who hew to norms about how we’re supposed to talk about very powerful government officials who are often wielding power in tyrannical ways. If you read my stuff, you know I am not particularly cautious in how I talk about these particular government officials. But I think the judges who are more likely to have the influence someday are those who operate within the weird norms of the profession.

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