The Wall Street Journal editorial board is using the slogan of judicial independence to immunize a Supreme Court that has lost public confidence from the criticism its rulings have earned — and is calling that defense constitutional principle.
That is the maximal charge. It is what the piece in fact did.
The governing instrument is judicial independence — the version the Roberts Court claims and the Journal has now weaponized on the Court’s behalf. Steelmanned, the doctrine runs like this. The federal judiciary is not elected. It does not stand for revalidation every four years. If its judgments bent to public opinion on the day they were issued, the courts would become a second, unaccountable legislature with life tenure. The Framers built the federal bench precisely to be insulated from the temperature of the moment. A judge who rules against the majority is doing his job when the Constitution requires it. That is the doctrine honestly held. The Marquette poll, the Journal insists, does not change it.
The Marquette poll does change it. Not because polls override law — they do not. The poll changes the audit because it measures the gap between the doctrine as stated and the doctrine as deployed. The Journal’s move is to treat criticism of specific outcomes as an attack on the institution itself, and to invoke the institution’s claimed independence as the shield. That move is the wrong.
A doctrine of judicial independence exists to protect the Court from political pressure on its process. It does not exist to protect the Court from accountability for the substantive content of its rulings. The moment the WSJ invokes independence as a shield against criticism of specific outcomes, the structural protection has become a substantive immunity. That conversion is the wrong the Journal’s editorial committed.
The audit follows. A Court actually practicing the steelmanned independence would not have conferred criminal immunity on a sitting president for the kind of official acts the Constitution’s impeachment clause plainly contemplates. A Court actually practicing it would not have ended the federal right to abortion against the consensus of the medical and bioethics amici. A Court actually practicing it would not have overruled forty years of Chevron deference in a single ruling while operating a shadow docket that disposes of consequential claims without oral argument. A Court actually practicing it would not have tolerated a Justice whose spouse was deeply involved in the operation to overturn the 2020 election while that Justice sat on cases touching the same effort and then refused to recuse. A Court actually practicing it would not now register the public trust collapse the Marquette Law School poll has been tracking through this decade — the steady downward arc that puts the Court’s approval lower than Congress in most recent readings.
Those Marquette numbers do not run this piece. They are evidence inside the audit. They show what a doctrinal failure looks like when measured against the public’s growing inability to tell the difference between the Court’s claim and the Court’s conduct. The Journal’s framing asks the reader to treat any criticism of specific rulings as an attack on the institution. The audit asks the reader to treat the institution’s collapsing standing as evidence the claim and the conduct have already parted company.
The WSJ’s posture collapses here. When seven in ten voters tell Marquette they have lost confidence in the Court, and the WSJ responds by lecturing them about the wisdom of the Framers, the WSJ is not defending the Constitution. It is defending the Court from the Constitution. The instrument it has invoked — judicial independence, properly understood — was built to defend the Court from political interference in its work. It was not built to defend the Court’s work from political critique. Conflating the two is not statesmanship. It is laundered apologetics for an institution that has abandoned its own claimed discipline.
The WSJ editorial board is using the rhetoric of judicial independence to immunize an activist Supreme Court from the criticism its rulings have earned. The Marquette poll is not a counter-argument. It is the verdict on the instrument. And the verdict is that the instrument, as currently deployed, is a fraud.