The problem these days isn’t just that the Supreme Court has critics. It’s that so many of them are lacking any sort of rigor or perspective, and many of them outright mislead their audiences. Sadly, this describes not just overheated writers but senior elected public officials, candidates for major office, and even prominent members of the judiciary. For those of us who explain the Court’s work, defend the overall approach of the post-2020 Roberts Court, and seek to reasonably critique its shortcomings, this is a source of endless frustration.

The current poster boy for juvenile tantrum-throwing is Todd Eddins:

The Court that now defines federal due process does not honor the work of 1954. It revives the work of 1857. The work of 1896. The Constitution must be interpreted “according to its true intent and meaning when it was adopted.” Dred Scott v. Sandford 60 U.S. 393, 405 (1857).

Today’s hubristic originalists use the same method to control modern life. . . . “A justice’s personal values and ideas about the very old days suddenly control the lives of present and future generations.”

Yes, Eddins really argued that originalism comes from Dred Scott, apparently never having read the originalist dissents in that case or Abraham Lincoln’s originalist critique of the majority. The citizenship clause analysis of Dred Scott was indeed originalism, done very badly. But everybody in that debate agreed that the original meaning of the Constitution was the starting point — well, until you get to the section of the opinion where Chief Justice Roger Taney invented the concept of substantive due process. That part of the opinion wasn’t originalist at all. Yet limitations on substantive due process are anathema to Eddins:

We take no guidance on the meaning of due process from a court that gutted due process protections in Dobbs. . . .

The Supreme Court’s imperious ideology does not stop at due process.

His hysteria about statutory text and the First Amendment is likewise unmoored from written law:

The same jurisprudence has cratered democracy itself. Start with the Voting Rights Act. . . .

Louisiana v. Callais . . . buried what remained of the crown jewel of the civil rights movement. Pretend law for a real statute. . . .

The Roberts Court sees only white. It refuses to acknowledge who the Equal Protection Clause was written to protect. . . .

The Court calls the Constitution colorblind while engineering the dilution of Black votes, the unraveling of hard-fought civil rights remedies, and the erasure of Black history. That is not blindness. That is white sight, by design.

A Constitution interpreted this way is not colorblind. It is whatever the Court needs it to be. A way to advance its partisan project. . . .

Last month, Nat’l Republican Senatorial Comm. v. Fed. Election Comm’n . . . made Citizens United look quaint, shredding coordinated spending limits Congress had enacted, and ensuring that those who bankroll elections drown out the ordinary person. Billionaires spend to be repaid. Everyone else just votes. The Roberts Court has made sure one’s wealth counts more than another’s vote. [Quotations and citations omitted.]

Eddins concludes in this vein:

Rulings run in one direction, time after time. Weakening protections for those with less power. Fortifying those with more. The pattern speaks for itself. . . .

That’s not all life tenure and zero accountability have produced lately. But it’s enough.

You wouldn’t know it from reading this purple-prosed series of ad hominems, but Eddins is not some random ranter on Bluesky; he’s a justice of the Hawaii Supreme Court writing a majority opinion in a criminal case that was joined by two of his colleagues. None of what is quoted above (including his umbrage at the overturn of his own opinion that the “spirit of Aloha” trumps the Second Amendment’s text) had anything at all to do with the case at hand.

As David Lat notes, the 62-year-old Eddins was a criminal defense lawyer before taking the bench. One wonders how often he insulted the judges he practiced before in this way. John Malcolm called this “shameful behavior.” Jonathan Turley called it “disgraceful” and “an unserious screed rather than a reasoned opinion.”

Iowa Solicitor General Eric Wessan observes, “As a frequent state supreme court practitioner, I have never seen an opinion that so aggressively targets the Supreme Court. . . . Judicial criticism should be respectful, reasoned, specific, and tethered to law. Nothing in those eight pages meets that standard. Instead, the opinion almost reads like an AI-generated grab bag of cases that liberal jurists dislike and accuses the Supreme Court of nefarious intent in issuing them.” As Carrie Severino noted, the “opinion is littered with negative parallelisms, a common hallmark of AI-generated text,” and should alarm people whose rights are before that court. “The state high court’s eagerness to broadcast contempt for the institution reviewing its work speaks volumes about its view of the judicial role. One can only assume that more defiant rulings will follow, and that the Supreme Court hasn’t seen the last of Hawaii’s mischief on its docket.”

Of course, Mark Joseph Stern of Slate thought that Eddins’s behavior was a model of how judges should conduct themselves: “It is a shame that so few are brave enough to speak candidly about the constitutional wreckage left by the Republican-appointed supermajority.”

If Eddins sounds like somebody who reads too much Slate, that’s because he probably does. In 2024, he appeared with Stern and Dahlia Lithwick on a Slate podcast, “How Originalism Ate the Law,” in which he praised Stern and Lithwick as “brilliant thinkers” and “top-notch legal journalists” while claiming that the current Court was “playing Russian roulette with our lives” and “unleashing misery every June.” He went on: “In Hawaii we don’t just focus on simply the text.” He cited the Obergefell decision as a positive example of how his court “looks at dignity, and that’s the way we approach our constitution.” If you’ve actually read Obergefell, you know that it had nothing whatsoever to do with constitutional text, meaning, or history and didn’t even pretend to try. It was an expression of the judges’ preferences smuggled under Taney’s umbrella of substantive due process.

Democrats, of course, are yet again calling for various schemes for Court-packing, often under slogans like “court reform” or “term limits,” to chill judicial independence. Even supposedly sane voices such as Josh Shapiro calculate that calling for nuking the federal judiciary is the only path through the 2028 presidential primaries. Jesse Wegman of the Brennan Center for Justice and the New York Times editorial board laud one of these “one weird trick” plans for destroying life tenure on the Court, in defiance of Article III and 237 years of tradition. Kim Wehle of The Bulwark, writing about “How the Roberts Court Is Blowing Up American Politics,” rants that it’s “harebrained” to treat executive agencies as part of the executive branch, that the Court is out “to crown an untouchable American king,” and that “this is not an unbiased, rule-of-law Court” but will deliver the “impending death” of the Constitution.

Ilya Somin had to patiently explain to the Court-packers that no, Louisiana v. Callais is no justification at all for Court-packing, and no, there isn’t a nonideological rationale for Court-packing. Nobody believes there is. It’s just a desire for different results. Which is also what we’re getting from those corners of the populist right that have been in a hissy fit since the birthright citizenship decision. I saw one chart bouncing around on X that claimed to show that before Dobbs, Justice Amy Coney Barrett “voted with the conservative position in 81% of non-unanimous cases” and that “since then, that number has dropped sharply into the 50–60% range in subsequent terms.” This, allegedly, is due to her fear of violence. One can only guess what sort of tortured methodology was required to get these percentages, but those who employed it make no effort to grapple with the merits of Barrett’s positions and of whether she was right. So few of these people bother to do the work of understanding the law. They just want what they want.

The fundamental problem remains: Originalism may not always work perfectly in practice — any more than the scientific method always works perfectly in practice, let alone the disciplines of history or journalism — but the idea of applying the law as written and understood by the people and their representatives is an organizing principle of legitimacy that the anti-originalists lack. The critics are so shrill because, at bottom, they don’t have a competing theory that makes any sense for a self-governing people.

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Lat argues, after watching strong performances by Justices Barrett and Elena Kagan before the House and Senate Appropriations Committees last week — the first time members of the Court have testified on Capitol Hill since 2019 — that the justices should do this more often: “When the justices shun appearing before Congress, it does a disservice to our democracy, which requires healthy engagement between the three branches of government.” He quoted Professor Steve Vladeck, who wrote that judicial testimony “created a setting in which justices could be asked difficult questions,” showing their “willingness to engage with the political branches on terms beyond the court’s own choosing.”

I’d be inclined to agree if I thought that regular appearances by the justices would result in their being asked questions. What we’re much likelier to see is them forced to sit still while people give ignorant speeches at their faces. That is the tenor of so much criticism of the Court today.