CNN legal analyst and John Roberts biographer Joan Biskupic joined Tuesday’s New Day to discuss the state of the Supreme Court, which Biskupic alleged has “a real stain” on its image after the Dobbs ruling and that Roberts is “in denial” when he tells me that simply disagreeing with the Court does not mean it is illegitimate.
Host Brianna Keilar kicked things off with the news that Justice Elena Kagan recently called the leak of the draft “horrible” and asking Biskupic what she thinks of the investigation. After very briefly touching on the status of the investigation, Biskupic opined that, “It was interesting to hear her, a liberal, talk about how horrible the leak was because as you know, a lot of conservatives have presumed that it was probably a liberal against the opinion who might have leaked it, but surely that leak served the conservative side because it locked in votes.”
That in no way discredits the idea that a liberal leaked it. It is entirely possible a liberal wrongly believed it was possible to pressure the justices through a media smear campaign.
Continuing, Biskupic claimed Kagan is correct to worry about the legitimacy of the Court after Dobbs, “The other thing she talked about there was the legitimacy or lack of legitimacy of the Supreme Court, you know, since the ruling striking down nearly a half century of abortion rights and many other politically charged decisions. There has been a real stain on the image of the judiciary as an impartial branch of government.”
Roe was a case where justices acted like politicians, but for Kagan and Biskupic, the true political act is rectifying that wrong, “And she said, you know, when she didn't name any decisions in particular, but she said, when the justices don't act like judges, they act like-- more like politicians, that's when public confidence will wane.”
Keilar then played a clip of Chief Justice John Roberts denouncing this kind of analysis, “if they want to say its legitimacy is in question, they're free to do so, but I don't understand the connection between opinions that people disagree with and the legitimacy of the Court.”
Biskupic replied by claiming Roberts just doesn’t get it, “I think he's just not confronting the reality of why people hold the Court in such low esteem right now. It's because -- it's not because they disagree with the opinions. Certainly most Americans have disagreed, especially with the abortion rights decision. But what people are seeing is that the justices are voting in lockstep politically.”
When justice vote in “lockstep,” it’s never the liberals who are accused of being political, only conservatives, “This Roe v. Wade was overturned because of Donald Trump's third appointment to the Court and he vowed he was going to appoint justices that would overturn it.”
Ignoring that Roe was a conclusion in search of a rationale, she added, “So, when the Court is not adhering to the precedent as has always been the mantra, the core principle of the Court, when it’s not adhering to precedent, when it seems to be voting only its political interests and offering what are dubious rationales, that is what has concerned people, not merely that they disagree with opinions. So, he's a bit in denial here, Brianna.”
It’s almost as if Roberts was talking directly to Biskupic when he made those remarks.
This segment was sponsored by Energizer Batteries.
Here is a transcript for the September 13 show:
CNN New Day with John Berman and Brianna Keilar
9/13/2022
7:57 AM ET
JOAN BISKUPIC: Yes, since the first weekend in May when they learned that Politico had a copy of the draft opinion and so far no culprit has been caught as far as we know and certainly Justice Elena Kagan suggested that no one had been caught and that they will be getting some modest status report at the end of the month.
It was interesting to hear her, a liberal, talk about how horrible the leak was because as you know, a lot of conservatives have presumed that it was probably a liberal against the opinion who might have leaked it, but surely that leak served the conservative side because it locked in votes. The other thing she talked about there was the legitimacy or lack of legitimacy of the Supreme Court, you know, since the ruling striking down nearly a half century of abortion rights and many other politically charged decisions. There has been a real stain on the image of the judiciary as an impartial branch of government.
And she said, you know, when she didn't name any decisions in particular, but she said, when the justices don't act like judges, they act like-- more like politicians, that's when public confidence will wane.
BRIANNA KEILAR: The chief justice addressed the legitimacy of the Court and I know you'll have an opinion about what he said a few days ago. Let's listen.
JOHN ROBERTS: So obviously people can say what they want, but and they're certainly free to criticize the Supreme Court and if they want to say its legitimacy is in question, they're free to do so, but I don't understand the connection between opinions that people disagree with and the legitimacy of the Court.
KEILAR: What do you think?
BISKUPIC: I think he's just not confronting the reality of why people hold the Court in such low esteem right now. It's because -- it's not because they disagree with the opinions. Certainly most Americans have disagreed, especially with the abortion rights decision. But what people are seeing is that the justices are voting in lockstep politically. This Roe v. Wade was overturned because of Donald Trump's third appointment to the Court and he vowed he was going to appoint justices that would overturn it.
So, when the Court is not adhering to the precedent as has always been the mantra, the core principle of the Court, when it’s not adhering to precedent, when it seems to be voting only its political interests and offering what are dubious rationales, that is what has concerned people, not merely that they disagree with opinions. So, he's a bit in denial here, Brianna.
