Chief Justice Roberts deems it 'mistake' to question Supreme Court's legitimacy based on decisions

Chief Justice John G. Roberts, Jr. on Friday night pushed back sternly against the notion that a series of controversial decisions over the past term has endangered the legitimacy of the U.S. Supreme Court.

"The court has always decided controversial cases and decisions have always been subject to intense criticism, and that is entirely appropriate," said Roberts, speaking at The Broadmoor resort in Colorado Springs to an audience of lawyers and judges. "But I don’t understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court."

The remarks from Roberts at the Bench & Bar Conference of the U.S. Court of Appeals for the 10th Circuit came little over two months since the conservative-majority court rescinded the longstanding federal protection for abortion, made it harder to enact gun restrictions and placed new constraints on the ability of government agencies to issue regulations.

The past term also featured an unprecedented leak when POLITICO obtained the draft majority opinion for Dobbs v. Jackson Women's Health Organization, the case that returned the regulation of abortion to elected bodies and triggered restrictions and bans on the procedure in Republican-led states.

Although Roberts did not address the leak or any case specifically, he said he was looking forward to returning to a court without security barriers — erected this term in response to protests.

"It was gut wrenching every morning to drive into a Supreme Court with barricades around it," Roberts said.

The 10th Circuit, which hears appeals in federal cases from Colorado and five neighboring states, holds a biennial Bench & Bar Conference in which judges and attorneys from the 10th Circuit's jurisdiction attend legal education events and meet informally with each other. The 2022 conference was the first since 2018, due to the COVID-19 pandemic.

Chief Judge Timothy M. Tymkovich of Colorado and his incoming successor, Judge Jerome A. Holmes of Oklahoma, interviewed Roberts at a "fireside chat" following a day of conference panels that repeatedly raised the low public approval of the Supreme Court. A recent Pew Research Center survey indicated disapproval for the court at a three-decade high, and a Gallup poll from June showed public confidence at its lowest point since the 1970s.

The court's term, in particular the Dobbs abortion case, reportedly has motivated Democratic voters in the midterm election, and correlated with stronger-than-average performance for the party's candidates in a handful of special congressional elections. Some Democrats vocally support reforms to the court, including through term limits, creating an ethics code and increasing the number of members.

"Rebalancing the court is a necessary step to restore its credibility as an independent institution, one that works for the American people and not just for the wealthy and the powerful," wrote U.S. Sen. Elizabeth Warren, D-Mass., last year in an endorsement of adding seats to the court.

However, Roberts rebuffed the notion that popular opinion should bear on the work of the court.

"You don’t want public opinion to be the guide of what the appropriate decision is," he said. "Lately the criticism is phrased in terms of 'Because of these opinions, it calls into question the legitimacy of the court.' I think it’s a mistake to view those criticisms in that way."

Roberts' interview followed an appearance on Thursday by Justice Neil M. Gorsuch, a former 10th Circuit judge who is also assigned to review certain requests arising from the circuit.

"I feel I probably got the best appellate bench training anybody could hope for," said Gorsuch, a 2017 appointee of Donald Trump. "You have a very good read on the whole of federal law in the 10th Circuit in the way that not every circuit does."

Gorsuch, who is from Colorado, spoke more directly about the Dobbs decision leak, labeling "improper efforts to influence judicial decision-making" as a "threat."

In the fireside chat, Roberts also mentioned the public will be allowed back for oral arguments when they resume in October. He acknowledged the newest member of the court, Justice Ketanji Brown Jackson, saying she is "going to be a wonderful justice."

"It almost causes us to up our game a little bit" to have a new member, Roberts said. "Now there’s a new person there and I think each of us will be a little more careful in explaining why we think what we think. It will be new to her."

Asked to give advice to the judges in the room, Roberts largely demurred, while offering the suggestion that the Supreme Court is "most interested" in whether the regional circuit courts of appeals disagree on a given legal issue.

Immediately prior to Roberts' interview, there was a presentation of a legal professionalism award to the late Monroe G. McKay, a 10th Circuit judge from Utah who died in March 2020 at the age of 91.

"Judge McKay was a great storyteller. And a great storyteller sees every case as a story," said former Chief Judge Deanell Reece Tacha. "He was always the first one to remind us of the human impact of the story before us."

The Bench & Bar Conference concludes on Saturday. The historical society for the 10th Circuit facilitated the fireside chat.