Courts

Harvard Law Professor Argues That The Supreme Court No Longer Cares About Its Own ‘Legitimacy.’ What Now?

As much as I dislike entrusting the future of our democracy to the Supreme Court, how much better is Mitch McConnell really?

on August 05, 2022
Supreme Court’s Roe Decision Disapproved By Majority In Poll

(Photo by Eric Lee/Bloomberg via Getty Images}

Why do we care about what the Nine Robed Figures have to say? There are the routine answers: Marbury, Plessy, Roe, Dobbs, Bruen, Gideon, Bakke, etc. But to answer in this way already misses the point. One could go on and analyze the merits of the decisions to undercut the authority of the decisions handed down — Marbury could have easily been resolved differently if the judges ordered a dude to deliver some mail, after all. What grants their opinions the power of judgment as such? As it turns out, it doesn’t have much to do with them. It has to do with us.

[W]hen the Supreme Court itself has discussed legitimacy, the case in which the Court gave its longest discussion of the term legitimacy before Dobbs was Planned Parenthood v. Casey…three Republican appointees, Anthony Kennedy, David Souter, and Sandra Day O’Connor, authored this joint opinion in which they asked the question, why do people listen to the Supreme Court? Why don’t they just treat our opinions as no different from a press release by a conservative senator, or a liberal senator? Why do they take our opinions and do things with it?

And their answer to that question was legitimacy. They defined the term legitimacy as basically, the general understanding among the American public, that when the Court issues an opinion, what it is doing is engaging in this principled analysis, as opposed to just exercising the individual views of the justices.

This reading, assuming that what grants the Supreme Court its authority is more than a line or two in the Constitution and includes the people’s belief that judges are doing their jobs in a principled manner may explain why the justices have expended so much hot air extolling their neutrality — despite clear evidence otherwise.

[T]oday’s Court had a choice of, do we want to cultivate this public perception that what we are doing is different from, say, what five Ted Cruzes would do if he were on the Court? Or, you know, you can get a Supreme Court of former clerks that are currently in Congress, like Josh Hawley or Ted Cruz, and then like Mitch McConnell, you take five of them, give them robes and a gavel — is what we’re doing different from what they would do?

And to the extent that the public believed there is this distinction between the two, then yes, I think that today’s Court basically does not care about that distinction. In the Dobbs opinion, Justice Alito explicitly said, it’s not our job to care about public opinion. We shouldn’t take that into consideration at all.

But I think what the Court is realizing, especially in the last few weeks, is, if you do not care about public opinion, and you do something that’s extremely controversial, you risk the public turning on you. And eventually at some point, if you anger enough people, the public will stop listening and start doing something to reform your power.

I think two big points stem from this. The first is that I doubt it’s a coincidence that the Court’s handwaving of legitimacy coincides with historically low approval ratings. And while talk of term limits and codes of conduct have long been a point of concern about regulating the behavior of Supreme Court justices, the uptick in these conversations could be explained by a widespread feeling of there being a counter-majoritarian problem that rises in relation to legitimacy’s decline. The second related point is that a Court that not only operates without legitimacy, but wantonly so re: Alito, is very hard if not impossible to distinguish from a vigilante or rogue court. If they don’t care about public opinion, what keeps them in check? It’s not like they have a code of conduct they have to follow or anything.

Prof. Bowie thinks that if we want to live in a democratic nation, rather than a state whose laws are dictated by a Rogue 9 with no real check against their authority, we ought to vest more legitimacy in a different branch.

Which institutions should be responsible for resolving these fundamental disagreements?…[W]hat do other countries do? In most other democratic societies, national legislatures are responsible for making these determinations, particularly democratically responsive national legislatures. From the United Kingdom to France and Germany and New Zealand — in general, these sorts of questions are decided by national legislation. And national legislation enacted through far more democratic legislatures than the United States Congress.

So I would love to see a more democratic Congress. I would love to see reforms to Congress to make it more democratic.

But even the Congress we have now, I think, is a better answer to the question of who should resolve these questions than another institution like state legislatures, or local governments, or neighborhood associations, or federal or state courts.

It is a bold solution given how often politicking gets in the way of common sense — KBJ’s confirmation was far more dramatic than it needed to be. But I think that something has to happen. And it has to happen now. Democracy has been declining globally and will likely continue down the slope if barriers are not erected to protect it.

How To Save Democracy From The Supreme Court [VOX]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.