Is the Supreme Court Facing a Legitimacy Crisis?

This article is part of the Debatable newsletter. You can sign up here to receive it on Wednesdays.

In a scathing joint dissent, Supreme Court Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer declared that the nullification of the constitutional right to abortion last week was a catastrophic decision not just for American civil liberties, but also for the legitimacy of the court itself. “In overruling Roe and Casey,” they wrote, “this court betrays its guiding principles.”

Warnings of the Supreme Court’s declining institutional credibility are hardly new, dating back at least to the court’s intervention in the 2000 presidential election, which Justice John Paul Stevens said in his dissent had wounded “the nation’s confidence in the judge as an impartial guardian of the rule of law.” But the rhetoric of delegitimization has intensified and moved well beyond the bench, increasingly deployed by Democratic politicians and commentators alike.

What exactly does it mean for the Supreme Court to experience a crisis of legitimacy, and is it really in one? Here’s what people are saying.

What makes a court illegitimate?

Accusations that the Supreme Court has gone “rogue” are often another way of saying that it has tacked too far to the right of public opinion. Polling conducted over the past week has shown that a majority of Americans disapprove of Roe’s overturning. The divergence is even more striking with respect to another decision the court made last week to strike down a New York law that placed strict limits on carrying guns outside the home, effectively establishing a broad right to be armed in public. According to a June poll, 79 percent of New Yorkers wanted the law upheld.

Critics of the court also contend that its right-wing majority is intellectually corrupt, employing disingenuous legal reasoning to cloak a reactionary political agenda. The court’s conservatives purport to be merely interpreting the Constitution with deference to the intentions of the framers and, as Justice Samuel Alito wrote in the decision overturning Roe, rights that are “deeply rooted in this Nation’s history and tradition.” Taken seriously, that description would seem to threaten a broad range of privacy rights not explicitly mentioned in the Constitution — including, for example, the rights to contraception and same-sex marriage. But Alito would not go so far: Abortion, he said, was categorically different from those other rights.

In the decision striking down New York’s gun law, Justice Clarence Thomas also claimed the high ground of history, arguing that only gun regulations that are “consistent with this nation’s historical tradition of firearm regulation” should be allowed to stand. But as Saul Cornell points out in Slate, states have been regulating guns for well over a hundred years, suggesting “that the conservative wing of the court is not sincerely interested in history, text, and tradition if the evidence cuts against them.”

These apparent contradictions are remarkable only “if you assume that the right-wing majority’s intention is to consistently apply legal principles rather than to translate right-wing cultural identity into law,” Adam Serwer argues in The Atlantic. “The majority’s supposed originalism is a means to affirm novel legal interpretations grounded in present-day right-wing grudges as what the Constitution demanded all along.”

Another often-cited piece of evidence for the court’s legitimacy crisis is the “politicization” of the confirmation process. Many court watchers say that the process became increasingly ideological and divisive after Robert Bork’s and Clarence Thomas’s nominations in 1987 and 1991. In an April article, the political scientists Miles Armaly and Elizabeth Lane argued that the trend accelerated in 2016, when Senator Mitch McConnell blocked President Barack Obama’s appointment of Merrick Garland. Then came Justice Brett Kavanaugh’s explosive hearing in 2018 and, most recently, the hasty effort by Senate Republicans to fill a vacant seat (Justice Ruth Bader Ginsburg’s) just weeks before a presidential election, despite McConnell’s refusal to do so four years earlier.

In survey research Armaly and Lane conducted, they found that McConnell’s rush to fill the position with a Trump nominee (Justice Amy Coney Barrett) decreased Democratic voters’ support for the court without improving it among Republicans.

“If the new norm of contentious, politicized hearings continues, the Court’s legitimacy may increasingly be threatened,” they wrote. “This is bad news for the Court, which relies on the public’s support for the enactment and enforcement of their decisions.” And sure enough, even before the abortion and gun rulings came down last week, only 25 percent of Americans said they had confidence in the court, down from 36 percent in 2021.

What legitimacy crisis?

In the eyes of many institutionalists, the Supreme Court — or any court, for that matter — would be less legitimate if it factored public opinion into its decision-making. As former Chief Justice William Rehnquist argued in 1992, “The judicial branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of government comport with the Constitution.”

And if following “its best lights” sometimes leads to rulings that conflict with what most Americans want, some legal scholars would argue that’s a virtue, not a flaw, since a crucial function typically ascribed to the judiciary is protecting minority rights against a tyrannical majority. Perhaps this Supreme Court is contravening the popular will in states like New York by striking down firearm restrictions. But arguably it made a similarly anti-democratic intervention in 2015 when it struck down restrictions on same-sex marriage, a practice that majorities in several states opposed around that time and in two states still do. The vital difference, of course, lies in the content of the right the court intervened to protect.

Many conservatives argue that in overturning Roe, the Supreme Court has actually reclaimed its legitimacy by turning the issue back to the states. In their view, the court’s original mistake was establishing a right to abortion in 1973 that they argue has no roots in the Constitution, depriving voters in individual states to settle the issue as they saw fit.

“It was at that time, and not today, that the justices overstepped their boundaries and ensured that the court would become the focus of political contention for half a century,” David B. Rivkin Jr. and Jennifer L. Mascott write in The Wall Street Journal. “Dobbsbelatedly corrects that error by recognizing that the federal judiciary’s constitutional role is merely to decide cases and controversies, based upon the established tenets of law grounded in the Constitution, federal statutes and common law. Policy decisions properly belong to the elected branches of federal and state government.”

And as for the often-denounced “politicization” of the court? According to the historian Rachel Shelden, the notion that it could ever exist outside of politics is a relatively recent one. In the 19th century, she explained in The Washington Post in 2020, Americans understood that the court was deeply partisan: Presidents made their picks based on ideology, not legal prowess, and it was routine for Senate majorities to reject appointees by presidents from an opposing party.

A nakedly partisan court, then, is just a reversion to the historical norm. The difference, according to Shelden, is that today’s justices exercise far more authority over our democracy than their 19th-century counterparts did. If that struck most Americans as a problem, they might support any number of reforms to rein in the court’s power — but there is little evidence that they do, at least for now.

A crisis for the court, or a crisis for liberals?

As Shane Goldmacher reported for The Times this week, many Democrats are deeply dissatisfied with the Biden administration’s response to Roe’s overturning, which has consisted mainly of reminding voters of the fall midterm elections. More than 30 senators sent a letter to President Biden calling on him to take “immediate action” to protect access to abortion with “the full force of the federal government”; representatives as ideologically disparate as Alexandria Ocasio-Cortez and Charlie Crist, a former Republican, have floated the idea of impeaching justices.

“There needs to be more fight,” said David Atkins, a Democratic National Committee member from California, who wanted to hear calls for structural changes to the court or the Senate. The Washington Post columnist Perry Bacon Jr. went further: “The overturning of Roe v. Wade, and the underwhelming reaction from senior Democratic leaders to that huge defeat, make the case even clearer that the party’s too-long-in-power leaders — including President Biden — need to move aside.”

More broadly, Roe’s fall might prompt Democrats to reconsider the role of courts in their theory of change. As the Times columnist Jamelle Bouie has written, the brief period in the mid-20th century when the Supreme Court aided progressive causes was an aberration: “For most of its history, the Supreme Court — the 16 years of the Warren court notwithstanding — has been a friend to hierarchy and reaction.”

Bouie drew on the work of Nikolas Bowie, a Harvard law professor and a critic of “legal liberalism,” a theory of change that relies on elite lawyers and judges to advance progressive politics. To the extent that this strategy has yielded victories, Bowie argues they have proved fragile, precisely because the strategy displaced efforts to build a deeper foundation of popular political power.

“Rather than look for leadership from dissents or Capitol poetry, we need to learn from people who have spent these same decades building power in *spite* of a hostile legal system,” Bowie wrote on Twitter. “The major question for the left is not how to persuade Justice Kavanaugh or Senator Manchin to listen, but how to persuade our neighbors and co-workers to commit to collective action.”

Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.

READ MORE

“Abortion Ruling Poses New Questions About How Far Supreme Court Will Go” [The New York Times]

“No, Justice Alito, Reproductive Justice Is in the Constitution” [The New York Times]

“It Is Not the Supreme Court’s Job to Follow ‘Majority Public Opinion’” [National Review]

“How to Discipline a Rogue Supreme Court” [The New York Times]