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And this was scarcely odd, because they’d eaten every one

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John Roberts is determined to find the people responsible for destroying the Supreme Court’s reputation:

On a stage in Brooklyn Monday night (geography matters people!) and in a conversation with Judge Alison J. Nathan, Justice Elena Kagan offered up her dissent to that point of view. “I think judges create legitimacy problems for themselves—undermine their legitimacy—when they don’t act so much like courts and when they don’t do things that are recognizably law,” she said. To Kagan, this current legitimacy crisis is not the fault of a public that has, you know, eyes and ears. It is the responsibility of justices who, as she put it, “stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.”

As Jennifer Rubin observed Monday, Roberts’ theory of the case is riddled with holes. He himself has done so very much to erode the public legitimacy of the current Supreme Court that he should recuse himself for a conflict of interest. His tireless, decadeslong work of eroding voting rights alone suggests that he cannot pretend he is not all in with the conservative supermajority’s project to replace democracy with juristocracy.

And Roberts knows better than to suggest that he doesn’t care about the connection between public opinion and the court’s legitimacy. While he may have said, onstage in Colorado, that “you don’t want public opinion to be the guide of what the appropriate decision is,” he himself refused to join the majority opinion in Dobbs overturning Roe v. Wade, precisely because he understands what cavalier reversal of precedent tends to do to public opinion.  As he himself wrote in his concurrence, the decision to overturn Roe would be a “serious jolt to the legal system.”

Roberts may not like that his Republican colleagues escalated increasing public dissatisfaction with the Court by overruling Roe, but he was critical to building the edifice, and if he failed to recognize that the other hacks were as passionate about overruling Roe as he was about nullifying the Voting Rights Act, well, it still hangs on him as much as anyone in the end.

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