Opinion | Supreme Court Justices Don’t Like Being Criticized in Public, Which Is a Good Reason to Keep Doing It

But then, something strange happened: In a little-noticed October 2021 ruling refusing to block Maine’s Covid vaccine mandate for health care workers, Justice Amy Coney Barrett wrote a cryptic concurrence (which Justice Brett Kavanaugh joined) suggesting that just because an applicant had made a case for emergency relief from the court didn’t mean the justices had to intervene. Rather, the court should use its discretion, she argued, much as it does in deciding the cases to which it will give full consideration. Justice Barrett didn’t say what would guide that discretion, but her brief concurrence was a turning point. To underscore that, in spring 2022, in an emergency relief case involving environmental regulation, Chief Justice John Roberts strikingly joined a dissent by Justice Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, emphasizing concerns about the procedural shortcuts the other conservative justices had been taking.

Since then, the court has intervened far less often and in ways that have looked far less partisan even when it has granted emergency relief.

Consider the court’s decision last month to preserve nationwide access to the abortion drug mifepristone — a ruling from which only Justices Clarence Thomas and Alito publicly dissented. What changed some of the conservative justices’ minds? We’ll never know for sure, but the biggest thing that happened between the rulings in the Texas abortion case on Sept. 1, 2021, and in the Maine vaccine case on Oct. 29, 2021, was the tremendous public reaction to the former. The Texas ruling brought the shadow docket into the mainstream — and the mainstream media, as an article published by the Chicago Policy Review noted. The consequences of the court’s shadow docket behavior became highly visible for nonexperts to see. And once the shadow docket went mainstream, public backlash followed.

We will all disagree as to whether public criticism of the court in specific contexts is fair. But what can’t be denied is that public pressure on the court has been, both historically and recently, a meaningful check on the institution’s excesses — and an essential means by which the public is able to hold unelected and otherwise unaccountable judges and justices to account.

In the case of the shadow docket, it has led the court to tamp down its aggressiveness and try to provide more explanations for its less justified interventions. In the hotly debated case of ethics reform going on now, all nine justices have already publicly committed to following at least broad ethical norms. The court can go further, and it can (and should) adopt formal internal mechanisms to enforce whatever rules the justices agree to bind themselves to — much in the way that internal inspectors general hold both the executive and legislative branches to account.

The point is not that any one set of reforms is a magic bullet. Rather, it is that a court whose legitimacy depends at least to some degree on public support is not, should not be and never has been immune to criticism and pressure from the same public.

Stephen I. Vladeck (@steve_vladeck), a professor at the University of Texas School of Law, writes the “One First” weekly Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”