In an essay in Politico magazine, conservative legal commentator and erstwhile Jeff Sessions flack Sarah Isgur puts forth a modest proposal: As public trust in the Supreme Court wanes and the justices’ approval ratings plunge further into the depths of the ocean, why not boost morale a little by slapping the name of a dead white guy on the building?
“The American people are losing any shared sense they ever had of what the Supreme Court stands for and what it should represent,” says Isgur, who served as Justice Department spokesperson while the Trump administration implemented its “zero-tolerance” immigration enforcement policy of separating families at the border. “The building’s symbolic anonymity—like the robes that the justices wear—is no longer the source of strength it was.” A savvy rebrand, she argues, would restore the luster that has been lost to some combination of the passage of time and an uninterrupted series of Supreme Court decisions that have made it harder for people of color to vote.
Isgur presents her nominee for this honor, Justice John Marshall Harlan, as a relatively unobjectionable choice, at least compared to the collection of unabashed racists and calipers enthusiasts alongside whom he served around the turn of the previous century. Harlan is best known for his dissent in Plessy v. Ferguson, the 1896 case in which the Court laid down the principle of “separate but equal” on which a century of Jim Crow laws were based. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” he wrote. “In respect of civil rights, all citizens are equal before the law.”
Harlan, of course, made clear the limits of this aspirational color-blindness two short years later in United States v. Wong Kim Ark, when he dissented from the Court’s holding that the U.S.-born children of Chinese immigrants were American citizens by birth. Harlan signed on to the opinion of Chief Justice Melville Fuller, who argued that the Fourteenth Amendment’s drafters understood citizenship to stem from the parents’ country of origin, not the location of a person’s birth. In a coming-full-circle moment for xenophobes across the ages, whenever Isgur’s former bosses railed against the scourge of “birthright citizenship” more than a century later, they were making basically the same argument.
Less important than pondering long-dead namesakes for the Supreme Court building, however, is the fundamentally hollow nature of the gesture. The justices’ approval ratings aren’t “at a historic low,” as Isgur notes, because the public has an insufficiently developed sense of the Court’s history or its role in public life. The justices’ approval ratings are at a historic low because people understand the Court’s history and its role in public life better than ever. The Republican Party has spent decades working to take control of the Court, weaponizing its reputation as a nonpartisan adjudicator to implement an unpopular political agenda by judicial fiat. Given that the youngest Republican-appointed justices are likely to remain on the bench for several more decades, absent meaningful structural reform, this Court is facing a well-deserved legitimacy crisis. It is a tribute to Isgur’s insulation from the consequences of the Court’s work that she views putting up a new plaque as a viable fix.
The consequences of this project, which culminated in last fall’s warp-speed confirmation of Justice Amy Coney Barrett, are already becoming clear to an increasingly alarmed public. At a moment when Americans support things like expanding voting rights, protecting abortion rights, reducing the power of money in politics, and building a pathway to citizenship for undocumented people, the final say on the law these days comes from a 6-3 supermajority of reactionary culture warriors who are committed to stopping progress in its tracks. A more appropriate tribute to this Court might be naming it for the next Republican state attorney general who prevents the greatest number of Black people from voting in the next election, or for the next landmark case in which the justices take away some fundamental right from a group they don’t like. A grand opening for the Shelby County Temple of Justice at One Mitch McConnell Plaza might not restore the Court’s reputation to a place Isgur imagines it deserves, but it would at least be an honest assessment of the status quo.
As an alternative to the reverential debates that a rebrand would inevitably entail, I suggest securing a corporate sponsor for the building, selling off naming rights to the world’s dorkiest arena to whichever brand is willing to write the biggest check. The Doritos Flamin’ Hot Nachos Supreme Court Building presented by Diet Mountain Dew Code Red would accurately convey the precise amount of reverence that Americans should feel for a Court helmed by Little Debbie Chief Justice John Roberts. An arrangement like this one might even help reestablish the collective sense of “what the Supreme Court stands for” for which Isgur pines, because future generations of visitors to the building would at least be able to learn about the Court’s shameful history while enjoying delicious snacks.