When to Overturn Precedent: The Interaction Between Political Pressure and Supreme Court Legitimacy

The Supreme Court is legally justified and arguably expected to respond to public opinion and political pressure. Americans who subscribe to the Living Constitution point of view believe the Constitution is a flexible document that should evolve with the country. Sometimes, responding to public opinion requires overruling precedent. Established precedents are necessary to maintain stability between different Supreme Court eras. However, the Supreme Court Justices must occasionally reverse precedent to reflect evolving values. In addition, public disapproval can lead to loss of sociological legitimacy for the Supreme Court as an institution, so responding to public opinion can be necessary to maintain institutional legitimacy. The Supreme Court is legally justified to respond to public or political pressure in order to reflect modern, evolving moral values and maintain legitimacy as an institution. 

While an independent judiciary is important to protect civil liberties, protecting the legitimacy of the court is imperative: the court’s authority stems from its legitimacy. People who object to political interference of the Supreme Court see “the Supreme Court as a protector of individual liberty and [are] reluctant to see its independence tampered with by politics”. [1] Certainly, the Supreme Court should protect liberties and enforce the Constitution, which should not change as frequently as political trends. However, maintaining legitimacy is even more imperative. The Supreme Court does not have the means, such as a police force or army, to enforce decisions. Its effect only remains if it maintains its institutional legitimacy. Harvard Law School professor Richard Fallon writes, “[t]he Constitution vests the Court with its powers based on the premise that its decisions will produce better and fairer results — within the limits that the law allows — than would otherwise”. [2] Thus, to accept the Court’s legitimacy is to buy into the system that the Constitution creates, believing that the Court will create a better and fairer nation. 

There are multiple types of legitimacy, reflecting the multiple expectations of the Court. Fallon describes three types of legitimacy: legal legitimacy (within reasonable bounds of constitutional interpretation), moral legitimacy (decisions uphold and reflect moral values), and sociological legitimacy (approval from a majority of citizens). [3] In addition, I present political legitimacy (freedom from direct interference from the other branches) and lasting legitimacy (decisions that continue to be respected in the future). The immediate aftermath of the Brown v. Board of Education (1954) decision faced massive resistance, with which the Supreme Court alone had little control over. However, the Court’s legal legitimacy — sound legal argument and unanimous vote — and moral legitimacy led to lasting legitimacy. Now, the Brown decision is held as one of the most revered Supreme Court cases in American history. Brown represents the importance of lasting legitimacy despite immediate resistance. 

The case of West Coast Hotel v. Parrish (1937) and its reversal of Morehead v. New York ex rel. Tipaldo (1936) illustrate the necessity of responding to public and political pressure in order to reflect modern, evolving values. During the Lochner Era, the Supreme Court struck down any economic interference that was not favorable to businesses. [4] The public was frustrated with the Court’s interference against needed economic policies. Discontent increased when the Tipaldo decision struck down a minimum wage law for women in New York, extending the unconstitutionality of federal economic laws to the states. [5] As Friedman wrote: “As the Court repeatedly interpreted the Constitution to deny the government the authority to deal with changing economic and social conditions, the people were coming to quite the opposite conclusion”. [6] The Supreme Court was not representing evolving values that the public needed them to protect. Instead, the Court was politically delayed, representing the business interests that they were appointed to uphold. Thus, when the Supreme Court switched course with the West Coast Hotel v. Parrish decision, responding to public pressure, they were justified because the switch upheld the evolving values of the public — that Congress should be able to pass needed legislation to address economic and social conditions without Supreme Court interference.

In addition, the West Coast Hotel v. Parrish decision saved the Court’s political and sociological legitimacy. As a solution to the Supreme Court’s interference, President Franklin D. Roosevelt presented a plan to pack the courts: a requirement that justices retire when they turn 70. [7] This court-packing plan would lead to the loss of political legitimacy, as the legislative and executive branches would interfere with the Supreme Court’s independence. FDR’s plan was met with public approval, signifying the loss of sociological legitimacy as well. Six weeks into the Court-packing fight, a Gallop Poll reflected that the support of FDR’s court-packing plan was greater than opposition to it. [8] Then, the Supreme Court reversed course with the West Coast Hotel v. Parrish decision. They upheld the constitutionality of Washington State’s minimum wage law, overruling previous precedents that struck down state economic interference such as minimum wage laws. [9] This case is referred to as “the switch in time that saved nine,”  because this switch responded to public disapproval and political pressure to eliminate the necessity of the court-packing plan, saving the Court’s legitimacy. 

In contrast, the Court’s decision in Dred Scott v. Sandford (1857) exemplifies the antithesis of a legally justified response to political and public pressure, as it does not uphold modern, evolving moral values, nor does it secure its legitimacy as an institution. Like West Coast Hotel v. Parrish, the Dred Scott decision was a political response. The country was deeply divided on the issue of slavery, so politicians looked to the Court to resolve the issue. [10] The Court aimed to resolve this political issue with the Dred Scott case. However, this case is not a legally justified response to public pressure. 

First, Dred Scott does not reflect the modern, evolving moral values. The country was evolving, recognizing the immorality of slavery with violent contention over the issue of slavery in the territories. [11] While it is true that not all of the country agreed with abolition, as evidenced by the American Civil War, the growing anti-slavery movement was the evolving moral value, objecting to the historical immorality of slavery. The trend of abolition represents the evolving moral principles of the country, and it was morally imperative for the Supreme Court to uphold. The Dred Scott decision did the opposite of that. The Court ruled that Dred Scott was not a citizen and that Congress was not authorized to “prohibit slavery in the territories”. [12] Thus, Dred Scott did not reflect the evolving moral values, instead upholding historical immoral systems. 

The Dred Scott case does not secure judicial legitimacy, instead garnering significant public opposition because of legal and moral objections. According to Friedman, “From the standpoint of legal craftsmanship, Dred Scott was a mess. Each justice wrote his own opinion”. [13] If each justice writes their own opinion, there is no unity, which is necessary for such a politically divisive decision. Simply contrast this nine-opinion decision with the lasting legitimacy of Brown). This leaves room for objection to the legal legitimacy of the decision, as the judges themselves were divided over the decision and the legal reasoning for the decision. Further, this decision was morally illegitimate as it ignored the immorality of slavery and even blocked Congressional measures in preventing slavery. The illegitimacy of the decision garnered immediate massive public disapproval, calling for its reversal. [14] Finally, the decision’s historical legacy and loss of lasting legitimacy should not be ignored: Dred Scott is now one of the most infamous Supreme Court cases. Thus, the Dred Scott decision is the antithesis of a legally justified response to public pressure because it neither upholds the morally evolving moral values of the country at the time nor secures its legitimacy with the decision, instead inviting objections questioning the Court’s legitimacy, both in the immediate aftermath and in its legacy.  

The above examples clarify the boundaries of judicial rulings that reflect evolving moral principles; however, it is not always an easy delineation. In the case of Korematsu v. the United States (1944), the moral rationale of the time is one that most Americans would strongly disagree with now. The decision of Korematsu ruled that the safety of American citizens was greater than that of Japanese citizens’ rights against racial classification, saying “[t]o cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue”. [15] The Korematsu decision relied upon political pressure from Congress and the military officers’ testimony. [16] Today, it is unfathomable that the Supreme Court, which is designed to protect citizens from severe governmental oppression, including sending citizens to internment camps based on their country of origin, would uphold this practice. However, at the time, the Congressional pressure, coupled with military officers' testimony, argued that this practice was essential for the country’s safety. The Supreme Court saw two conflicting moral issues: the rights of Japanese Americans versus supposed threats against American safety. Political pressure lobbied for the prioritization of the country’s safety, exemplifying a situation where political pressure can negatively interfere with the Supreme Court’s ruling. The Supreme Court certainly should have ruled the internment camp practice unconstitutional, as it stripped members of their liberty and autonomy without due process, discriminating based on race and nationality, which overtly violates the Constitution’s Equal Protection Clause and the Due Process Clause. However, the fact that the political pressure argued for the prioritization of safety suggests the limitations of the evolving moral principle argument when justifying responding to political pressure. 

Another example that shows the limitations of the evolving moral principle argument is the potential overrule of Roe v. Wade (1973). Like with Korematsu, conflicting moral principles dominate this case. Both sides of the argument, politically known as the “pro-choice” and “pro-life,” believe their side is the correct “moral” argument. This conflict begs a crucial question: who should decide whenever there are conflicting moral principles? Despite these limitations, the justification principle of responding to public pressure reflecting evolving moral values and maintaining legitimacy remains a valid guiding principle. 

When the moral principle leaves ambiguity, the judicial legitimacy principle can provide supplementary guidance. In the case of the Korematsu ruling, the precedent has now lost all lasting legitimacy, despite the fact that it has not been overturned officially. In fact, it is now used as an anti-precedent. In Trump v. Hawaii, the dissenting opinion “invoked Korematsu as an analogy (based on alleged ‘dangerous stereotypes,’ ‘animus,’ and the government’s ‘unwilling[ness] to reveal its own intelligence agencies' views on the alleged security concerns’)”. [17] Korematsu is now used as a warning in which to compare similar cases today, which also speaks to the embarrassing legacy of the Court that decided Korematsu. I argue that the potential overturn of Roe v. Wade would also lead to a loss of legitimacy. There would be significant public disapproval and potential outright defiance. This massive public disregard of the constitutional ruling most starkly highlights the loss of legitimacy, paralleling Dred Scott.  

The Supreme Court is legally justified to rule in response to public pressure if the ruling reflects evolving political values and maintains the Court’s legitimacy. In the case of West Coast Hotel v. Parrish, the Court reversed course and overturned its prior rulings to respond to public pressure. The reversal reflected the country’s evolving values and government intervention in economics while upholding political and sociological legitimacy. In contrast, the Dred Scott decision reflects the opposite of a legally justified response to political pressure: it neither reflects the countries evolving moral values nor does it maintain legitimacy. Korematsu and Roe v. Wade demonstrate that controversial moral judgments must rely on the judicial legitimacy principle for guidance. Maintaining legitimacy is imperative for the Supreme Court because the Court ultimately relies on its legitimacy to function. 

References

[1] Barry Friedman, “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.,” Farrar, Straus and Giroux, 2010. 236

[2] Richard H. Fallon Jr., “Law and Legitimacy in the Supreme Court,” De Gruyter (Harvard University Press, February 19, 2018), https://doi.org/10.4159/9780674986114. 10.

[3]  Fallon, “Law and Legitimacy in the Supreme Court,” 8.

[4]  Friedman, “The Will of the People,” 155.

[5] Friedman, “The Will of the People,” 204.

[6]  Friedman, “The Will of the People,” 205.

[7] Friedman, “The Will of the People,” 217.

[8] Friedman, “The Will of the People,” 225.

[9] Friedman, “The Will of the People,” 226.

[10] Friedman, “The Will of the People,” 110.

[11] Friedman, “The Will of the People,” 108.

[12]  Jesse H. Choper et al., Constitutional Law: Cases, Comments and Questions (St. Paul, MN: West Academic Publishing, 2019). 1371-2

[13] Friedman, “The Will of the People,” 112.

[14] Friedman, “The Will of the People,” 113.

[15] Choper, Constitutional Law: Cases, Comments and Questions, 1388.

[16]  Choper, Constitutional Law: Cases, Comments and Questions, 1387.

[17] Choper, Constitutional Law: Cases, Comments and Questions, 1395.