A Legitimacy Crisis in the Supreme Court? Not Really. But the Concern is Making the Court Weaker

The American public is inundated with claims that the Supreme Court — the U.S.’ most cherished institution — is surrendering to partisanship. The media cries for reform, underlining the need to pack the court, impose term limits, or “balance the bench” by allowing existing justices to unanimously hand-pick new justices [1]. We are told that these radical changes are necessary to safeguard the Supreme Court’s legitimacy, the public belief that an institution's power is justified [2]. Headlines like “Has the Supreme Court Lost its Legitimacy? [3]” and “The Supreme Court's Legitimacy Crisis” flood the internet [4]. But is all the worry merited? Is it really necessary to overhaul the Supreme Court?

Before we can answer these questions, it is imperative to give legitimacy the respect it deserves. A lack of political legitimacy is why “power is exerted with coercion,” giving rise to dictatorial governments and unstable regimes across the globe [5]. Without legitimacy, our governments and judicial bodies are reduced to nominal institutions. Thus, it is of paramount importance that the term legitimacy “crisis” be used only when merited. This article will argue that the Supreme Court does not deserve the title. The Supreme Court’s obsession with preserving its legitimacy is not only unnecessary; ultimately, the Court’s legitimacy crusade hampers its ability to rule on controversial decisions and actively undermines the jurisprudence behind its rulings. 

The Supreme Court’s historically-drawn bounds of power underscore the absence of a legitimacy crisis. As outlined in the Federalist Papers, the Supreme Court has a restricted and well-defined jurisdiction. In Federalist No. 78, Alexander Hamilton writes that the Supreme Court has, “neither FORCE nor WILL, but merely judgement” [6]. The power of judgement itself is limited and difficult to abuse because it does not permit action: The Supreme Court has no power over the enforcement of their decisions. In fact, Justice Stephen G. Breyer considers himself an “optimist” when it comes to the future of the Supreme Court and its ability to withstand political polarization because of these restrictions [7]. Thus, because the Supreme Court has such a specific and restricted territory –– merely wielding the power of “judgement” –– it becomes inherently difficult for the public to believe that this power is unjustified and, by extension, illegitimate. 

In addition to the Supreme Court’s historically-cemented legitimacy, public trust in the Court has remained stable over the last half century. Indeed, a 2020 Gallup Poll reveals that Americans have had roughly the same level of “trust and confidence” in the Supreme Court dating back to 1972 [8]. In 1972, 66% of Americans reported that they had either a “great deal” or “fair amount” of trust and confidence in the U.S. Supreme Court; that figure experienced a marginal increase to 67% in 2020 [9]. Admittedly, the knowledge that nearly one in four Americans do not have a high degree of trust in the Supreme Court may initially appear alarming. However, while it is important to acknowledge that distrust among the American public exists, it is clear that there is no new reason to be concerned with the legitimacy of the Supreme Court when trust in the institution, if anything, has increased. 

Despite stable levels of trust from the American public,  Supreme Court Justices still express a disproportionate amount of concern over preserving their legitimacy. In October 2019, Justice Elena Kagan made a passionate appeal: “All of us...need to realize how precious the Court’s legitimacy is. It’s an incredibly important thing for the Court to guard this reputation of being impartial” [10].  Justice Kagan’s appeal has a certain degree of merit. Legitimacy is important, but the extent to which the Supreme Court prioritizes it is harmful. In fact, rather than uplifting the Court's public reputation as Kagan aspires, the legitimacy obsession counterproductively impedes meaningful and impartial adjudication within the Court.

The legitimacy obsession prevents the Court from tackling controversial issues to make meaningful change, as exemplified by both historical and recent evidence. For instance, in Brown v. Board of Education of Topeka (1955), referred to as Brown II, the Supreme Court issued a weaker ruling to conform with public opinion and preserve its legitimacy [11]. In Brown II, the Court considered what directives should be used to enforce their ruling in Brown I, a watershed case holding that “separate but equal” was unconstitutional [12]. While Justice Thurgood Marshall “implored the Justices to establish a firm deadline for desegregation [13],” U.S. Solicitor General Simon Sobeloff encouraged the Court to be more opaque, merely requiring that desegregation be conducted “as speedily as feasible” [14]. The Justices were stuck in the middle, eager to please the public and preserve their legitimacy. As legal scholars like Michael J. Klarman explain, the Justices began considering how the public would respond, expressing concerns like, “[t]he more specific and immediate the relief ordered, the greater the chances of defiance” [15]. In internal deliberations, Justice Black reportedly reminded his colleagues to consider how their legitimacy could be impacted; offering, “[N]othing could injure the Court more than to issue orders that cannot be enforced” [16]. With this in mind, the justices issued an embarrassingly unenforceable ruling, establishing that desegregation be carried out merely with “all deliberate speed.” 

By prioritizing how their legitimacy would be impacted, the Supreme Court significantly weakened their holding in Brown I. Ten years after the original finding in Brown I, 98% of Black children in the South still attended segregated schools, largely because the “all deliberate speed” ruling established in Brown II inhibited public officials from effectively enforcing the original Brown v. Board ruling [17]. As legal scholar Tara Leigh Grove contends, the Supreme Court facilitated an egregious assault on equality because the Justices “valu[ed] the Court’s prestige… over the plaintiffs’ constitutional rights” [18].

A preoccupation with legitimacy also weakens the Court by encouraging Justices to vote in accordance with public opinion rather than jurisprudence. In fact, the Justices may “switch” their votes on various important cases to safeguard their reputation. The “Switch in Time that Saved Nine” is the most poignant example of this phenomenon. In 1937, President Franklin D. Roosevelt’s New Deal programs were repeatedly being struck down by a 6-3 Supreme Court [19]. In response, President Roosevelt proposed expanding the Court to fifteen, adding six new members who would support his programs. Nearly overnight, two Justices, Chief Justice Charles Evans Hughes and Justice Owen Roberts, switched their votes on F.D.R.’s programs to appease the president and prevent his court-packing suggestion from coming to fruition [20]. Starting with the NLRB v. Jones & Laughlin Steel Corp., (1937), a 5-4 Supreme Court suddenly began affirming the New Deal [21]. While the intent behind the sudden ideological “switch” of Chief Justice Hughes and Justice Roberts remains highly contentious, “many scholars have argued that the Court’s overall change in direction was at least in part a reaction to public pressure, and particularly President Roosevelt’s plan” [22]. Thus, the Court affirmed a radical change to American politics, upholding the New Deal, not because they believed it was constitutionally valid, but because they wanted to preserve the legitimacy of their nine-person court. This incident more broadly suggests that the Court is willing to deviate from legal precedence when their legitimacy is questioned. 

Vote switching is not only a historical legend but also a present concern that invalidates the Court’s rulings. In 2012, Chief Justice Roberts reportedly “switched” his vote in the landmark Affordable Care Act case, National Federation of Independent Business v. Sebelius (NFIB) (2012), to “safeguard the Supreme Court’s reputation” [23]. The case dealt with the constitutionality of Obama’s Affordable Care Act (ACA) [24]. According to CBS journalist Jan Crawford, Chief Justice Roberts initially sided with the four conservatives on the Court, believing that the ACA was unconstitutional. However, after “countless news articles in May warning of damage to the Court — and to Roberts' reputation,” Chief Justice Roberts switched his vote, siding with the liberal bloc and delivering a 5-4 decision supporting the ACA [25]. Legal scholar Tara Leigh Grove explains that “Chief Justice Roberts believed that the Affordable Care Act’s individual mandate was unconstitutional. But after a barrage of criticism declaring that a ruling against President Obama’s signature legislation would destroy the Court’s reputation, the Chief Justice opted to change his vote” [26]. Once again, the Court compromised its legal beliefs to bend to the public’s will and preserve the Court's legitimacy. 

For the past five years, Supreme Court justices and the media have expressed a disproportionate amount of concern over preserving the Court's legitimacy. At face value, this concern is not inherently harmful. However, a more in-depth analysis of the Court’s legitimacy obsession reveals two devastating consequences. For one, the Court retreats from controversial cases. Secondly, the Justices are more inclined to vote against their jurisprudence in favor of upholding their public reputation. The Supreme Court’s fight to increase its legitimacy is at the expense of the Court’s fundamental purposes and values: fair, equal rulings decided by legal precedence. It’s time the Supreme Court recognizes that they need only stand behind one value: issuing legally valid arguments. If they consistently succeed in doing this, legitimacy will surely follow. 

References

[1] David A. Graham, “The Democrats Discover the Supreme Court,” The Atlantic, June 4, 2019, https://www.theatlantic.com/ideas/archive/2019/06/buttigiegs-supreme-court-plan-and-democrati c-party/590905/. 

[2] Fabienne Peter, “Political Legitimacy,” in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta, Summer 2017 (Metaphysics Research Lab, Stanford University, 2017), https://plato.stanford.edu/archives/sum2017/entries/legitimacy/.

[3] Peter Irons Peter Irons is professor of political science emeritus at the University of California et al., “Opinion | Peter Irons: Has the Supreme Court Lost Its Legitimacy?,” NBC News, accessed October 3, 2021, https://www.nbcnews.com/think/opinion/has-supreme-court-lost-its-legitimacy-ncna966211. 

[4] Michael Tomasky, “Opinion | The Supreme Court’s Legitimacy Crisis,” The New York Times, October 5, 2018, sec. Opinion, https://www.nytimes.com/2018/10/05/opinion/supreme-courts-legitimacy-crisis.html. 

[5] “The Importance of Understanding Legitimacy - GSDRC,” accessed October 19, 2021, https://gsdrc.org/topic-guides/the-legitimacy-of-states-and-armed-non-state-actors/key-language-and-concepts/the-importance-of-understanding-legitimacy/.

[6] “The Avalon Project : Federalist No 78.” Accessed October 3, 2021. https://avalon.law.yale.edu/18th_century/fed78.asp.

[7] “Breyer, the Optimistic Justice, Shakes off Defeats but Warns of Threats to Supreme Court’s Authority.” Washington Post. Accessed October 22, 2021. https://www.washingtonpost.com/politics/courts_law/justice-breyer-supreme-court-future/2021/08/28/0d6c60e4-0774-11ec-a266-7c7fe02fa374_story.html.

[8] Gallup Inc, “Supreme Court,” Gallup.com, September 25, 2007, https://news.gallup.com/poll/4732/Supreme-Court.aspx.

[9] Ibid 

[10] Peter Irons Peter Irons is professor of political science emeritus at the University of California et al., “Opinion | Peter Irons: Has the Supreme Court Lost Its Legitimacy?,” NBC News, accessed October 3, 2021, https://www.nbcnews.com/think/opinion/has-supreme-court-lost-its-legitimacy-ncna966211. 

[11] “Brown v. Board of Education of Topeka, 349 U.S. 294 (1955),” Justia Law, accessed October 4, 2021, https://supreme.justia.com/cases/federal/us/349/294/.

[12] “Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),” Justia Law, accessed October 4, 2021, https://supreme.justia.com/cases/federal/us/347/483/. 

[13] Tara Leigh Grove, “SACRIFICING LEGITIMACY IN A HIERARCHICAL JUDICIARY,” COLUMBIA LAW REVIEW 121 (n.d.): 62. 

[14] Felicia A Burton and Tara Leigh Grove, “Sacrificing Legitimacy in a Hierarchical Judiciary,” n.d., 51. 

[15] See citation #13 

[16] Ibid. 

[17] Sarah Pruitt, “Brown v. Board of Education: The First Step in the Desegregation of America’s Schools,” HISTORY, accessed October 4, 2021, 

https://www.history.com/news/brown-v-board-of-education-the-first-step-in-the-desegregation-of -americas-schools. 

[18] See citation #13 

[19] “Opinion | It’s a Big Deal When the Supreme Court Decides Not to Decide,” Washington Post, accessed October 5, 2021, 

https://www.washingtonpost.com/opinions/2020/06/16/its-big-deal-when-supreme-court-decides -not-decide/. 

[20] Ibid. 

[21] Ibid. 

[22] Ibid.

[23] Tara Leigh Grove, “The Supreme Court’s Legitimacy Dilemma,” accessed October 5, 2021, https://harvardlawreview.org/2019/06/the-supreme-courts-legitimacy-dilemma/.

[24] “NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS,” LII / Legal Information Institute, accessed October 5, 2021, https://www.law.cornell.edu/supremecourt/text/11-393. 

[25] “Roberts Switched Views to Uphold Health Care Law,” accessed October 5, 2021, https://www.cbsnews.com/news/roberts-switched-views-to-uphold-health-care-law/. 

[26] See citation #23