A Question of Legitimacy
Progressives no longer get what they wants from the Supreme Court, so they attack the institution as such. So much for "norms" and "preserving democracy."
Now that I’ve completed the serialized story of my Georgetown saga, there are fewer “automatic” things I need to cover in this newsletter. (I will still return to my “lived experience” on occasion, to look at discrete issues like whether I was right to issue a limited apology, etc.) At the same time, four months after the launch of Shapiro’s Gavel, and given the analytics that Substack provides authors, I also have a better idea of subscription dynamics, what sorts of posts generate engagement, and when it’s better to press “publish.” So going forward, I’m going to endeavor to publish free content on Sundays and then have “bonus posts” for paid subscribers during the week that might be podcasts or other “extra” material. I’ll continue limiting the ability to comment to paying subscribers, but just this time will open them to everyone so I get a sense of what readers would like to see. Thanks for reading! —IS
After last Supreme Court term’s pronounced shift to the right, and the unprecedented leak of the draft opinion in the abortion case Dobbs, attacks on the Court have spilled from the fever swamps of newsrooms and faculty lounges to reach the justices themselves. Members of the high bench have taken to publicly “subtweeting” each other (thinly veiled criticism) over whether recent decisions have harmed the institution’s credibility.
Justice Elena Kagan has implied that the modern Court’s majority was simply doing the Republican Party’s bidding. “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions,” she said. “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.” On the other hand, she had previously warned that becoming too disconnected from public opinion was also a problem, part of conservatives’ scheme to undermine our system of government. “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”
Chief Justice John Roberts last month rejected his colleague’s insinuations, adding that the court’s mandate to interpret the law should be respected regardless of political fights over certain rulings. “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court,” he told a judicial conference in Colorado. The Court’s responsibility “doesn’t change simply because people disagree with this opinion or that opinion.” Justice Neil Gorsuch said much the same thing at the same conference in his native state.
More recently, Justice Samuel Alito pushed back on Kagan’s attempts to discredit the Court in comments to the Wall Street Journal. “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” Alito reiterated that point in a discussion at the Heritage Foundation last week (which I attended).
Even before last term’s blockbuster conservative rulings, there was plenty of handwringing about judicial partisanship and ominous warnings, sometimes more like threats, about the Court’s “legitimacy” being in jeopardy. On this telling, Gorsuch is an illegitimate justice because he “stole” Merrick Garland’s seat, Brett Kavanaugh’s illegitimacy comes from being a serial rapist who lied about his commitment to precedent, and Amy Coney Barrett was improperly pushed through despite Saint Ruth Bader Ginsburg’s dying wish that whoever won the 2020 election name her successor.
The background insinuation is clear: if the justices rule in ways that disagree with progressive orthodoxy, there will be hell to pay. It’s a nice Court you have there, wouldn’t want anything to happen to it. More precisely, to quote a recent brief from five senators in a 2020 Second Amendment case, with Senator Sheldon Whitehouse (D-R.I.) as counsel of record, “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics.”
The morning of argument in 2020’s big abortion case, June Medical Services v. Russo, Senate Minority Leader Chuck Schumer said before a cheering crowd on the courthouse steps, “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price.” Chief Justice Roberts issued a rare press statement later that day, saying, “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”
I’ve written about this phenomenon before, and indeed here I build on a 2019 feature I wrote for the Washington Examiner and my book Supreme Disorder, the last chapter of which shares its name with this post.
We’ve come to expect this sort of “working the refs,” a cynical tactic that will continue so long as it appears to be an effective guilt trip against “institutionalist” judges like Roberts himself. No longer the Court’s median vote, the chief justice has continued his never-ending quest to preserve the Court’s reputation, including offering a compromise in Dobbs that nobody agrees with except my nominal doppelganger Ilya Somin.
My point isn’t to present the definitive theory of judicial legitimacy, but to show how this question plays out and is both a contributor to and symptom of the politicization of public discourse. Modern legitimacy concerns can be traced to three key moments: (1) Bush v. Gore (2000), (2) the battle over Obamacare (2010–12), and (3) the Trump era—the combination of Mitch McConnell’s blocking of Merrick Garland and Donald Trump’s winning the presidency while losing the popular vote, thus getting to replace not just Scalia but the swing-vote Anthony Kennedy and the liberal icon Ginsburg.
In the wake of Bush v. Gore, prominent progressives rent their garments over the end of the rule of law. In January 2001, more than 600 law professors signed an ad in the New York Times decrying the decision. Neal Katyal, one of Al Gore’s lawyers and later acting solicitor general under President Obama, described George W. Bush’s victory as the Supreme Court’s “immolation”: “By elevating politics over principle, the court revealed itself to be no better than any other institution or actor that touched this election.” Katyal also compared the case to Dred Scott as a time when the Court hurt itself by playing politics.
Harvard law professor Alan Dershowitz argued that the majority’s decision to “substitute their political judgment for that of the people threatens to undermine the moral authority of the high court for generations.” “Unless steps are taken to mitigate the damage inflicted on the Court by these five justices, the balance struck by our Constitution between popular democracy and judicial oligarchy will remain askew,” Dershowitz wrote, presaging today’s populists.
Yale law professor Bruce Ackerman suggested that Bush himself was an illegitimate president. “If such a president is allowed to fill the Court, he will be acting as an agent of the narrow right-wing majority that secured his victory in the first place,” so Congress should prevent Bush from appointing new justices like it did during Reconstruction by preventing Andrew Johnson from doing the same by cutting seats. In a refrain that should sound familiar from the 2020 election campaign, restructuring the Court was the only way to preserve legitimacy.
The pushback to these attacks was encapsulated in a concise 2001 law review article by Berkeley law professor John Yoo that was appropriately entitled “In Defense of the Court’s Legitimacy.” Yoo argued that Bush v. Gore would not have a sustained impact on the Court’s legitimacy when viewed through the lenses of public opinion, history, and impartiality. First, it turns out that people’s confidence in the Court remained relatively stable, at least in the short term. Next, Yoo compared the moment to other times when the Court’s legitimacy was in doubt: the early Republic, the runup to the Civil War, initial resistance to the New Deal, and the Warren Court’s fight against segregation and expansion of civil liberties. “Close inspection of these periods show that they bear little resemblance to Bush v. Gore. The defining characteristic of several of these periods was the persistent, central role of the Court in the political disputes of the day.” Finally, “only by acting in a manner that suggests that its decisions are the product of law rather than politics can the Court maintain its legitimacy.”
More important than any specific analysis of Bush v. Gore is an “unpacking” of factors common to all complaints about the Court:
1. Public opinion. Because the Court’s authority derives wholly from people following its decisions, public opinion matters. The critic might use data to show that the public has less confidence in the Court, argue that the Court shouldn’t overturn democratically enacted laws, or suggest that justices appointed by a president who didn’t win the popular vote are illegitimate. These sorts of claims can be summed up as: “The Court didn’t rule my way but the political winds are blowing in my favor, so democracy, not the Court, should win out.”
2. Historical precedent. In what previous circumstances has the Court’s legitimacy been in doubt? Except that when critics rely on historical precedent, they often compare current cases to past ones they feel were wrongly decided or to overturned cases that are so different from the one at hand that the comparison becomes hyperbolic at best—comparing the Trump administration’s travel ban to Korematsu (the internment of Japanese Americans during WW2), Bush v. Gore to Dred Scott, Dobbs to Plessy v. Ferguson, etc.
3. Impartiality. Those who say the Court fails this consideration accuse justices of partisanship, lawless ideology, or bias toward a particular kind of party (for example, big business). These accusations become more common when the Court issues opinions on divisive issues, or, increasingly, if the justices subscribe to a coherent legal philosophy like originalism.
Arguments on these grounds are found in every criticism of the Court’s legitimacy, and they’ve been increasingly used in the last 20 years, not just after rulings, but ahead of them, to influence swing votes. Most notable in that regard, at least until Donald Trump came down his escalator in 2015, was the Obamacare litigation.
The first lawsuit was filed the same day President Obama signed the Affordable Care Act into law in March 2010. Initially the challengers’ legal claims were treated as frivolous sour grapes after losing a political fight. But when rulings started going against the government, illegitimacy claims began. After Judge Roger Vinson invalidated the individual mandate in January 2011, Yale’s Akhil Amar compared Vinson to Roger Taney, author of Dred Scott.
Fast forward to the end of March 2012, when Supreme Court oral arguments did not go well for the government. The New Republic’s Jonathan Cohn argued that the “legitimacy of the Supreme Court” is at stake, singling out Justice Alito as opposing welfare programs on policy grounds while also appealing to “tens of millions of Americans” because “nobody has said they want to stop government from providing universal access to health care.” Cohn was neither the last nor most prominent critic calling into question a potential ruling against the ACA. President Obama himself said it would be “conservative judicial activism,” an attack Senate Judiciary Committee Chairman Pat Leahy later repeated.
Of course, Roberts did switch his vote to preserve Obamacare in NFIB v. Sebelius, on a bizarre taxing-power theory that most people recognize was a “twistification,” his best attempt to uphold the law while not expanding Congress’s regulatory power. Slate’s David Franklin wrote that a decision to strike down the law “would have been received by the general public as yet more proof that the court is merely an extension of the nation’s polarized politics.” He also compared the chief to another Justice (Owen) Roberts, who made the “switch in time” in 1937 that started approving New Deal programs.
The sad thing about the episode is that the chief justice didn’t have to do what he did to “save the Court.” Roberts only damaged his own reputation by making the move after those warnings from pundits and politicians. I don’t think that impolitic pressure had much to do with his vote, but much of the American public does.
The whole reason we care about the Court’s independence is so it can make tough decisions while letting the political chips fall where they may. Had the Court invalidated Obamacare, it would have been the sort of thing for which it needs all that accrued legitimacy. Instead, we got some judicial strategery. In refraining from making the sort of balls-and-strikes call he invoked at his confirmation hearing, Roberts actually decreased respect for the Court, thereby showing why judges shouldn’t play politics.
In other words, when justices occasionally switch their votes to maintain some sort of perceived external legitimacy, they undermine the internal legitimacy of the judicial process. As Justice Kagan put it in remarks at Princeton on the eve of Justice Kavanaugh’s confirmation, “[p]art of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country.” And what undermines that public view more than justices’ changing their votes to a position they don’t believe to be legally correct, in search of public acceptance?
Nor have the pressures against which Chief Justice Roberts has been reacting, in his self-appointed mission to protect the Court’s legitimacy, come entirely from the outside. Justice Sonia Sotomayor, speaking alongside Justice Kagan, expressed a fear that her colleagues’ philosophies might come with an unwanted partisan overtone. “When the political parties adopted that language as their own, they superimposed that on the court,” she explained, referencing the Republican Party’s rhetorical commitment to originalism, which “institutionally, has hurt the court a lot and may continue to do so.” Apart from failing to take originalist claims seriously on their own terms—namely the idea that a fidelity to original public meaning is a necessary component of judicial legitimacy—Sotomayor’s view demonstrates that it’s not only court-watchers who view jurisprudential disputes as a proxy partisan battle.
In the Trump era, nothing the administration did was seen as legitimate by a large segment of the population, but especially in the Supreme Court context because of the Garland saga. It’s not surprising that in fall 2018—long before Dobbs—The Nation published an article asserting “How the US Supreme Court Lost Its Legitimacy” that’s hardly different from one called “The Supreme Court’s Legitimacy Crisis” in the New York Times. Berkeley Law Dean Erwin Chemerinsky upped the ante with a remarkable assertion that, assuming Kavanaugh was confirmed (he was writing a few days before the final vote), “each of the five conservative justices . . . came on to the Court in a manner that lacks legitimacy.”
After the Kavanaugh confirmation, Senator Dianne Feinstein, the judiciary committee’s ranking member, went on to tweet that Justice Kavanaugh’s confirmation “undermines the legitimacy of the Supreme Court.” Former attorney general Eric Holder likewise tweeted: “The legitimacy of the Supreme Court can justifiably be questioned.”
Hanging over the debate on Supreme Court legitimacy is the possibility that some actors—lower courts, agencies, states—may begin to practice “open defiance” of controversial decisions with which they disagree. The judiciary is the “least dangerous branch,” as Alexander Hamilton dubbed it, because it relies on the institutions it governs to accept its constitutional authority as an arbiter of legal disputes. Outside exceptional circumstances like Lincoln’s suspension of habeas corpus, however, the Court’s decisions have been recognized and obeyed, if sometimes grudgingly.
Observing a “crisis of legitimacy” created by the Kavanaugh confirmation, however, Slate’s legal correspondent (the same person who fomented the mob to go after my Georgetown job) gleefully speculated that a future Democratic administration might give in to street protestors demanding that it ignore decisions by a majority-GOP-appointed Court, citing even southern resistance to Brown v. Board of Education as an uncomfortable precedent. “What can the Supreme Court do? Send its tiny police force to storm the White House?”
Some progressive critics have gone so far to call for the impeachment of justices as a remedy to their underlying illegitimacy. A core inconsistency would seem to be inherent in these proposals: the illegitimacy of a gerrymandered House and non-proportional Senate, which is said to have brought this situation to pass, would make the constitutional impeachment process itself illegitimate.
In contrast to oft-expressed concerns over legitimacy, polling tells conflicting stories as to the Court’s standing among the public. Gallup has the Court’s approval rating declining from a high of 62 percent at the beginning of the 21st century, but the numbers don’t map onto conventional narratives of recent judicial politics. According to the poll, the Court’s approval reached its nadir in 2021 at 40% (with disapproval of 53%), and has since moved to 43% (with 55% disapproval). Over a longer term, in the last half-century, the number of Americans with a high degree of confidence in the Court has declined only slightly, from the low 40s to the high 30s, while the number with little to no confidence has remained steady in the high teens and the number with “some” confidence has modestly increased.
So what are we to make of all this? Is it simply that where you stand on the question of judicial legitimacy now also parallels where you sit politically? In two words, pretty much. Political scientists even have an expression for this dynamic: “Legitimacy is for losers,” because those who like an outcome generally don’t question the Court’s decision making. A FiveThirtyEight analysis shows that views of the Court “are fairly malleable, and tend to shift around big events or decisions,” typically in opposite directions by ideological or partisan affinity in response to the latest politically salient case or confirmation battle. According to the Pew Research Center, the share of Democrats who see the Court in a positive light plunged from 67 to 28% in the last two years. Republicans, meanwhile, who as recently as 2015—after rulings that upheld Obamacare and required states to license same-sex marriages—only gave the Court a 33% approval rate, are now at 73% (though this is down from 82% in 2019).
That 45-point partisan gap is significant, but it’s not unprecedented, either historically or in recent decades. (See also Ilya Somin’s analysis.) It’s easy to see why people are attacking the Court’s legitimacy: big issues are on the docket and we have the culmination of trends whereby divergent judicial theories map onto ideologically distinct parties. And that goes as well for the related debate over the preservation of old precedents. Where you stand on how sacrosanct precedent is depends on which precedent you have in mind. For all the gnashing of teeth about overturning precedents in Citizens United and Janus, which along with lower-profile cases served in part as proxy wars leading to the overturning of Roe v. Wade, is there any doubt that a progressive majority would act the same way toward conservative shibboleths?
In the end, the only measure of the Court’s legitimacy that matters is the extent to which it gets the law right and applies it correctly. The reason for these legitimacy disputes isn’t that the Court is partisan or that the confirmation process is broken, but that (1) the Court and judicial nominations can’t be divorced from the larger political scene, and (2) sometimes justices seem to make decisions not based on their legal principles but for strategic purposes. Ironically, it’s when justices think about “legitimacy” and try to avoid political controversy that they act most illegitimately.
As for the fallout from last term, the idea that the Court made radical decisions driven by partisanship, while unfortunately coming not just from Twitter lawyers but leading academics, is disingenuous at best. To use the technical legal term, it’s nonsense.
It’s not that reasonable people can’t disagree on these cases, or that anyone who disagrees with me in particular is stupid or politically motivated. To the contrary, it’s those questioning the Court’s legitimacy and calling the justices partisan hacks who seem to believe that the only way to reach the results we’ve seen is to act in bad faith. That sort of attitude isn’t healthy for our republic, particularly at a time when institutional trust is already low and political tribalism increasingly prevents either side from accepting electoral outcomes.
What’s going on at the Court is a very deep and serious legal dispute that nevertheless easily fits within the parameters of the rule of law. The Court’s critics simply need to take at face value the originalism and textualism that the Court’s majority applies. It’s perfectly fine to disagree with that methodology, but there’s no more evidence that Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are results-oriented than that Justices Sotomayor, Kagan, and Jackson are. Perhaps many of the Court’s critics who align with the liberal justices think that all jurists are results-oriented and vote their values. I’m no psychologist, but that sounds like some kind of “projection.”
As the Wall Street Journal put it, “The fury of the left’s reaction isn’t merely about guns and abortion. It reflects their grief at having lost the Court as the vehicle for achieving policy goals they can’t get through legislatures.” It’s an understandable impulse but not one that fairly impugns the highest court in the land.
As I said up top, comments are open to all subscribers, so tell me what you’d like me to cover in future posts.
To someone from the middle of the political spectrum (and sans any legal expertise) the denouement here: that progressives are spun up because the can no longer count on the courts to create policies they favor but are unable to achieve through legislation, seems clearly true. I heard zip from the left when liberal judges spent decades inventing a substantial (and consequential) slate of rights which appear nowhere in the Constitution. Some of these decisions were widely popular at the time (for instance, allowing some racial preferences in Balke) but popular is not the same as wise. I'd argue that we'd be better off, decades down the road, if a lot of well-intentioned but unwise legal policy making by SCOTUS since the 60s had never occurred. I'm pro choice with limitations (just because there are some fates worse than being born), but Roe v Wade seemed to me to invent a right. Now the ball is back in my court on this issue. Time to make the argument and see who wins legislatively. That's the way that it should be.
I'd like to see you provide historical context to current criticisms of the court.
For instance, the view of Gorusch's seat as "stolen" because the Republican controlled Senate refused to consider Obama's nominees prior to the 2016 election. This was treated as unprecedented by the Democrats and pretty much all of the media, but my understanding is that it has happened multiple times throughout US history.
Perhaps you could talk about historical precedents not only to this but to other criticisms of the court when the shoe was on the other foot, as it were. Political charges are largely opportunistic and both parties are guilty.
With your deep historical knowledge of the history of the court, I'm sure you could find some fascinating historical parallels to recent criticisms of the court.