The Supreme Court Seems Awfully Nervous About Its Own
Legitimacy
Oct. 4, 2022, 5:00 a.m. ET
Opinion
Columnist
One of the cardinal
rules of power, as Christopher Wallace once said in the fourth of his “Ten
Crack Commandments,” is to never get high on your own supply. Put differently,
it is important for people in positions of influence to stay aware of the
limits of their perception and ability. To buy your own hype or indulge your
own propaganda — to treat your image as reality and close yourself to criticism
and critique — is to court disaster.
It is especially
important to remember this rule when your power rests on something other than
brute force. If you depend on customs and norms to exercise your will, if other
people have to believe that you are a powerful actor in order for you to be a
powerful actor, then you have to be mindful of the reality of your position.
You should — you must — do everything you can to shepherd and preserve your
legitimacy in the eyes of those who effectively grant the power you wield.
My use of the word
“legitimacy” is an obvious giveaway that I’m talking, here, about the Supreme
Court. In recent months, several justices have spoken out on the question of
the court’s power and legitimacy, which are inextricably tied up with each
other. In the wake of the leak of what would become, with just a few tweaks,
the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health,
Justice Clarence Thomas (a George H.W. Bush appointee), warned that such leaks,
as well as protests against the justices, would fatally weaken the Court as an
institution.
“What
happened at the court was tremendously bad,” Thomas said in May.
“I wonder how long we’re going to have these institutions at the rate we’re
undermining them. And then I wonder when they’re gone or destabilized, what
we’re going to have as a country.”
More recently, the
chief justice of the United States, John Roberts (a George W. Bush appointee),
defended the court against attacks on its legitimacy from Vice President Kamala
Harris and other critics of its far-reaching decisions in Dobbs, New York State
Rifle & Pistol Association v. Bruen and other cases.
“Simply because
people disagree with opinions, is not a basis for questioning the legitimacy of
the court,” he told an
audience of judges attending a conference in Colorado Springs. Roberts added that “if
the court doesn’t retain its legitimate function of interpreting the
constitution, I’m not sure who would take up that mantle. You don’t want the
political branches telling you what the law is, and you don’t want public
opinion to be the guide about what the appropriate decision is.”
In a talk last month,
Justice Elena Kagan (a Barack Obama appointee) rejected this view, responding
to Roberts even if she did not name him directly. Kagan said that the
conservative majority had damaged the court’s credibility with the public in
decisions that seemed to track the political and ideological interests of the
Republican Party more than any coherent interpretation of the Constitution.
“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,” Kagan 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.”
“If, over time, the
court loses all connection with the public and with public sentiment,” Kagan
added, “that is a dangerous thing for democracy.”
Kagan’s
colleague, Justice Samuel Alito (also appointed by George W. Bush), had this to
say in a comment 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.”
Or, as Justice Amy
Coney Barrett said last year while
speaking to an audience at the McConnell Center at the University of
Louisville, “this court is not comprised of a bunch of partisan hacks.”
That the justices are
discussing the legitimacy of the Supreme Court in the open is reason enough for
us to discuss the legitimacy of the Supreme Court as well. And what’s striking
about the comment from Thomas in particular is how it roots the challenge to
the court’s legitimacy in the inside baseball surrounding the leak rather than
public discontent with its decisions that Kagan spoke about. In a similar
disconnect, Roberts and Alito both take for granted the legitimacy of the
Supreme Court and its decisions, as if its power were inherent to the
institution — part of the natural order of things rather than something that’s
been mediated by politics throughout the court’s history. Roberts even asserts
the exclusive right of the court to say what the law is, as if the institution
exists above and beyond the constitutional system, accountable to no one but
itself.
Only Kagan seems to
have any awareness that the court’s stature is a precious resource that can be
lost if the institution runs too far away from the public, or if the court
begins to treat the public and its representatives as mere subjects — bound to
obey its judgments — rather than partners in the construction of constitutional
meaning.
The truth, as Kagan
said, is that the conservative majority has gone far past where the public is
and that the public is increasingly skeptical of the court’s power and
influence. Forty-seven percent of Americans say that they trust the judicial
branch of the federal government, an all-time low according to a recent Gallup
poll, and a whopping 58 percent of Americans disapprove of the way
the Supreme Court is handling its job. Thirty-eight percent say that the
ideological leaning of the court is “about right,” but 42 percent of Americans
say the court is too conservative.
If the conservative
justices weren’t so convinced of their own righteousness — if they weren’t so
high on their own supply — they might be able to see that they’re playing a
dangerous game. The court’s power, including the influence of each individual
justice, depends on the consent of the public and its representatives. And
while there is not, at this moment, a broad-based movement to bring oversight
and accountability to the Supreme Court, it’s also not beyond the realm of
possibility.
The Dobbs ruling was
so unpopular that it pushed a majority of Americans to support court expansion,
according to a Marquette University Law School poll. Two-thirds of Americans
also want to impose term limits on
justices, according to The Associated Press. One can only imagine how these
numbers will look as the conservative majority continues to write Republican
Party ideology into the Constitution using “originalism” or “textualism” or
whatever other method the justices choose to reverse engineer their
conclusions, as they are poised to do in this new term with cases on
gerrymandering, voting rights, the environment and the rights of sexual
minorities.
The
conservative majority on the Supreme Court is more than ready to abuse its
power and authority. The question is whether the American public is willing,
through its representatives in Congress, to discipline the court — to remind it
of the actual scope of its power and relegate it to a less central place in our
constitutional order.