Civility and its Discontents, Supreme Court ed.

 

By Legal Correspondent Saori Shiroseki

While still on the air for who knows how much longer, Stephen Colbert invited Supreme Court Justice Sonia Sotomayor on his show recently to plug her new children's book, There's an Alito Under My Bed [Intern, check title – Ed.] and chat a little about the Supreme Court.

As is now clear to even the meanest intelligence, the six bent Republican Justices on the Supreme Court have continued to rule us all not as judges applying the law but as an unelected House of Lords, imposing their warped reactionary political views on the rest of us.

How do we know this?  Because the three unbent Justices tell us, if you deconstruct what they write.

Here's Ketanji Brown Jackson, condemned by dead hatemonger Charlie Kirk as an unqualified diversity hire despite her two Harvard degrees (for those keeping score at home, that's two more degrees than St. Charlie ever earned) and her stellar career on the district and appellate court levels, dissenting from an idiotic lawless shadow-docket decision that allowed the U Bum Administration to continue to withhold illegally NIH grants for medical research:

 NIH v. APHA, No. 25A103 (Aug. 21, 2025), slip op. at 17 (Jackson, J. dissenting).

For those of you who are not acquainted with the abstruse legal thinking of Calvin and Hobbes, the friendly legal analysts at Balls & Strikes helpfully summed up Justice Jackson's dissent:

The key words here are “stops just short.” 

Which is at least surprising given Balls & Strikes' columnist Madibe Dennie's spot on analysis of Jackson's dissent:

Jackson’s dissent is not a mere disagreement with a colleague’s judgment. She is demonstrating that what her colleagues are doing isn’t even judging; laws have little to no bearing on the outcome of their decisions, which are determined instead by Republican policy goals. For a long time, members of the public and the coordinate branches of government have accepted the Supreme Court’s rulings because they assumed, from the outside looking in, that it is a legitimate body to be taken seriously. Jackson is showing why it is not. 

When the Republican majority invented without legal basis a “major questions doctrine” to prevent EPA from doing what it was empowered to do under the Clean Air Act (regulate air pollution), Justice Elena Kagan similarly criticized her Republican colleagues for not acting like judges: 

The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get- out-of-text-free cards.  

West Virginia v. EPA, No. 20-1530, slip op. at 28 (Kagan, J., dissenting).

And she knows full well that when a Supreme Court majority in effect overturns acts of Congress because of its own policy preferences, like lining the pockets of Republican fossil fuel magnates, the Supreme Court loses its legitimacy:

But in Kagan’s view, the public’s trust in the Court is vital, so the trustworthiness of the Court is, too. It is a reason for the judicial modesty she values: justices don’t inherit legitimacy. Legitimacy is a form of respect from the people, which the Court either fosters or fritters away by what it decides—and, critically, how. Its majority opinions must shape and command public opinion. Story professor Richard H. Fallon’s book on the subject is Law and Legitimacy IN the Supreme Court (emphasis added): Replacing of with in underscores what Kagan highlighted: “The Court earns its legitimacy by the way it behaves.” 

Lord Thomas and the Knights of Schickelgruber's Teacups

She knows the current Court is an illegitimate political entity. Why won't she say so? 

Which brings us to Justice Sonia Sotomayor.  Recently, in a case on the shadow docket staying a lower court's order preventing the ICE body-snatchers from stopping people because of their ethnicity, language, and apparent vocation she dissented:

this Court decides to take the once-extraordinary step of staying the District Court’s order. That decision is yet another grave misuse of our emergency docket. We should not have to live in a country where the Government can seize anyone who looks Latino, speaks Spanish, and appears to work a low wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent.

Noem v. Vasquez Perdomo, No. 25A169, slip op. at 1-2 (Sotomayor, J., dissenting)(emphasis added).

Dissents don't ring any louder than that.

But when interviewed by America's leading political commentator, Stephen Colbert, she tempered her critique markedly:

You know I don't always agree with my colleagues.  Some of them.  And they can be really frustrating....What I look for to maintain our collegiality is the good in them.  

Late Show with Stephen Colbert, Sept. 9, 2025 at 16:45ff  (paywalled). 

We have to ask at what point is maintaining collegiality inconsistent with a Justice's duty to defend the Constitution by pointing out that six of her colleagues are acting as unelected aristocrats and not judges?   

If it is the case that the Supreme Court has replaced its legitimate role as a court of law with an illegal unconstitutional role as an unelected Council of Doges, doesn't that require a political solution?

You'll be shocked to learn that we raised this question in March, 2024, before the last score of unconstitutional Court decisions:

What's the point of pretending the Court is acting as a court when it indisputably is not, according to the unbent Justices who sit on it? 

We'd argue that the maintaining the false pretense is itself dangerous because it helps perpetuate the injustice and corruption of the six Republican wardheelers in robes.  

Imagine how powerful the effect would be of three past and present Justices admitting that the current Court is not only strutting down First Street NE naked, its pubes flying into Coke cans all over Capitol Hill, but that the time has come for the President and the Congress to fix the ongoing coup against democracy with appropriate legislation.

They're just calling balls and strikes

Indeed, the time came in 2000. 

Pretending since then that nothing is wrong has led us to observe helplessly the plight of 26,000 pregnant rape victims in Texas and the outrageous stacking of the criminal justice system deck in favor of a corrupt Russian-owned insurrectionist criminal defendant.

And the stakes are so much higher, now that the six bent Republicans have repeatedly decided to enable a tyrannical Presidential coup against American democracy. 

Publicly calling out one's colleagues as frauds and subverters of our nation is hard.  How much harder would it be knowing you could have acted decisively to save our nation by insisting on a political solution to Supreme Court lawlessness but you were too busy looking for the good in Brett Kavanaugh?

And if you're like any number of helpless women Yale students, perhaps Brett will help you look for the good in him by whipping it out.