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I was motivated to write about this week’s topic by three events in the past week—a debate that the Georgetown Student Chapter of the Federalist Society hosted last Wednesday night between Catholic U. law professor Jenn Mascott and me (video here); a speech that veteran Supreme Court practitioner Kannon Shanmugam gave at Duke Law School; and an editorial by the Wall Street Journal. All three included some variation on the same theme—criticism of at least some of the Supreme Court’s public critics (including, at least in the first example, me specifically) for criticizing the Court in a way that undermines the Court’s “legitimacy,” and that has, in the process, imperiled not only the rule of law in the abstract, but the justices’ personal safety.
There’s a lot to say about these arguments. In today’s bonus post, specifically, I want to try to put them into a broader context—one that starts by identifying how we ought to think about the source of the Court’s legitimacy; whether that legitimacy even can be eroded by external criticisms; and, if so, whether and to what extent critics have a responsibility to style their critiques in ways that don’t further undermine the Court’s legitimacy.
To make a long story short, I think these questions are all much more complicated than they might seem—and that these recent episodes have not just been frustratingly one-dimensional in their portrayals of critics, but have only scratched the surface of the deeper debate in which they’re necessarily taking a position. My own view is that the Court’s legitimacy comes principally from its own behavior; that external criticisms relate to that legitimacy only insofar as they are facilitating public understandings of that behavior; and that a critic’s obligation is not to avoid delegitimizing critiques altogether, but rather to be very clear about whether their critique is that the Court erred in some understandable (one might even say “legitimate”) way, or that the error was, and ought to be, delegitimizing.
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What is the Source of the Court’s Legitimacy?
Any conversation about the Supreme Court’s legitimacy has to start with at least some attempt to define the concept—what does it mean for the Court to be “legitimate,” and how is such legitimacy achieved and/or maintained?
My own view is to start with what the Court itself has said on the subject. The closest we’ve come to a thorough exposition from the justices has to be the joint opinion in Casey—in which Justices O’Connor, Kennedy, and Souter attempted as thoroughgoing a discussion of the Court’s power and legitimacy as I believe we’ve ever seen in the U.S. Reports. It’s worth quoting the relevant passage in full:
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court’s decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court’s opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
Casey, of course, has been overruled. But I’m still persuaded that this is as good a summary of the source of the Court’s legitimacy as we’ve got—that the Court’s legitimacy comes from its ability to persuade the American people that its decisions are motivated by coherent legal principles, not necessarily because we’ll all agree with the principles that the justices are espousing, but because we’ll hopefully agree at least that their rulings are based upon those principles.
I’m perfectly willing to accept that there are other ways of thinking about (and even defining) the Court’s legitimacy. For present purposes, it should suffice to note that relying upon this formulation is, if nothing else, a reasonable basis from which to assess the Court’s legitimacy—if for no other reason than because it’s the most overt basis the Court itself has ever provided.
This is why, for example, my own reaction to Dobbs was so different from, e.g., Students for Fair Admissions. The Court’s retreat in the latter ruling from its earlier decision in Grutter has a legal principle behind it—the anti-classification theory of the Equal Protection Clause about which I’ve written previously. I don’t agree with that interpretation, but I do accept that it is a principled interpretation of the Constitution—and, indeed, one that many of the Republican appointees have applied at least relatively faithfully. Dobbs hit different not because Justice Alito’s majority opinion failed to offer a sufficiently principled basis for overruling Roe, but because the principles on which he purportedly relied were so … thin and transparently outcome-oriented. Your mileage may vary in both cases, of course; I use this example only to illustrate how the distinction between a principled ruling with which I disagree might differ from a ruling that is so unprincipled as to fall short of Casey’s formulation. Even if you find these examples unpersuasive, presumably there are others that come to mind.
How do Criticisms Erode the Court’s Legitimacy?
The second part is, to me, the messier one. On the Casey view of the Court’s legitimacy, it’s the Court itself that is responsible for preserving its legitimacy—and it’s hard to see, at least at first, what critics could to do undermine it, especially so long as those critics are accurately describing what the Court has actually done. This was my initial reaction to Justice Alito’s September 2021 speech about the shadow docket—where he complained that the term itself was being “used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. This portrayal feeds unprecedented efforts to intimidate the Court or damage it as an independent institution.” My knee-jerk response was that the issue wasn’t the portrayal of the Court; it was the Court’s own behavior. To me, the terminology didn’t matter; what mattered was what the Court was actually doing in its unsigned, unexplained orders.
That said, the reality is that there are a large number of folks out there whose access to what the Supreme Court has done comes through intermediaries—be it the media, law professors, or others. And so, to the extent that those intermediaries, myself included, are translating the Court’s behavior to a larger audience, I’ve become persuaded that it is plausible to posit a link between criticisms and eroding public support in the Court—because the criticisms can sometimes be baked into the translation. For instance, there were a lot of claims in the aftermath of Dobbs that it was the first time the Court had ever overruled a prior precedent in a way that eliminated a constitutional right. That’s not true—but it conveyed the impression that the decision had done something that was institutionally nefarious beyond what it actually held. Thus, those who heard this claim and had their view of the ruling colored by it likely were influenced by the critique more than by what the Court itself did.
But there’s a flip-side here that the Court’s defenders, in my view, have all brushed right past: cases in which the critic is correctly identifying a serious legitimacy problem. This is, perhaps unsurprisingly (I leave to you whether it’s also fairly), how I think about much of my shadow docket work. At the core of my critique is the argument that, when the Court isn’t explaining seemingly inconsistent rulings that are producing massive real-world effects, it’s failing to live up to the Casey ideal—because it’s not providing any principles to explain its interventions, let alone principles with which we might agree. The result is to produce at least the appearance that the justices are voting their partisan political preferences rather than their legal principles—an appearance that, insofar as folks are paying attention to it, would quite naturally lend itself to eroding public faith in the Court’s legitimacy.
Of course, the Court’s defenders might dispute that these examples are signs of a legitimacy problem. But that should be where the debate is joined—and not just criticisms of critics for delegitimizing the Court. If the legitimacy critique is unfair, whether because the Court’s behavior is being described inaccurately or because the accurately described behavior just isn’t delegitimizing, it’s incumbent upon the speaker to explain why. Putting aside the Wall Street Journal editorial board (from which I’ve long-since stopped expecting nuance), this is what I find unsatisfying about my debate with Professor Mascott and Kannon Shanmugam’s speech: If you’re going to attack critics for delegitimizing the Court, it seems like at least some effort has to go into explaining why (and not just asserting that) their critiques are wrong. Yes, this puts these folks in the potentially awkward position of needing to explain why it’s okay for the Court to regularly hand down major rulings without explaining itself; or why the personal behavior of Justices Thomas and Alito is above reproach. But skipping over that part is doing to the Court’s critics exactly what the defenders are claiming the critics are doing to the Court—trying to delegitimize them without accounting for the possibility that the arguments you’re trying to delegitimize are … legitimate.
What’s a Responsible Court Critic To Do?
Just to be clear, I don’t doubt for a second that there are some critics of the Court out there who have, as their primary goal, the weakening of the Court as an institution—and, indeed, who would take it as a badge of honor, not a criticism, that that’s what they’re doing. Hopefully, you’ve read enough prior issues of this newsletter to know that I’m not one of them. Indeed, I think I’ve been pretty clear that a lot of my public critiques of the Court are motivated by a desire to preserve the Court’s legitimacy—and to arrest unfortunate trends that, in my view, are nudging the Court’s public credibility ever-downwards. For folks like me <insert “there are dozens of us” gif here>, this whole conversation thus presents a bit of a Catch-22: we want to help identify the Court’s problematic behavior in ways that don’t make things worse. And we sure as hell don’t want to do anything that helps to provoke violence.
I can’t pretend to have all the answers. But it seems like a good starting point for those who want to try to strike that balance would be to make efforts to distinguish between those criticisms that are implicating the Court’s legitimacy and those that aren’t—i.e., behaviors that undermine public confidence in the Court, on the one hand, versus either small-time mistakes or principled disagreements where the criticism is that the Court got something wrong, but in a way that was not unreasonable. A shorthand for this distinction might be “injudicious” behavior vs. “judicious” behavior. To go back to my above example, then, Dobbs, to me, is injudicious; SFFA is judicious but wrong. Or, if you prefer this distinction in a single case, consider Biden v. Nebraska—the June 2023 ruling striking down President Biden’s student loan debt forgiveness program. Last summer, I wrote a piece for the newsletter complaining about the “lawlessness” of the Nebraska majority’s standing analysis. I chose that word quite carefully—and specifically distinguished my apoplexy at the Court’s standing analysis with my more modest disagreement with how the Court resolved the merits, where I thought the Court was wrong but principled.
The goal of that piece wasn’t to delegitimize the Court; it was to explain why I thought the Court’s standing analysis itself was delegitimizing. It’s certainly possible that, for the six people who both (1) read that piece; and (2) aren’t already Article III standing experts (hi mom!), the piece itself was responsible for some marginal delegitimization of its own. But as long as the critique is itself reasonable, it seems unfair, in that context, to blame its author—versus the justices whose own behavior precipitated the reasonable critique.
That may not be an especially profound insight. But the way things are going, we’re in for more of these conversations in the months and years to come. And just as it’s unhelpful for the Court’s critics to frame everything that the Court does as illegitimate, so too is it unhelpful for the Court’s defenders to seek to delegitimize all of the Court’s critics in one fell swoop. We should all accept both that (1) a lot of what the Court does is perfectly legitimate; and (2) many critiques of the Court are also perfectly legitimate. The trickier part is, and must be, how we draw both sets of lines. But it’s incumbent upon all of us to attempt to do so—and not just to assume that we’re on the “right” side in all cases, and that the “other” team isn’t.
We’ll be back Monday with our regular coverage of the Court. Until then, thanks for your continued support of One First! I hope you have a wonderful weekend.
Thanks for another very good post.
For me, the Shelby County decision remains the most lawless decision of the Roberts court, in that it abrogates a clear express statement of Congress’ power - Section 2 of the 15th Amendment.
I appreciate your descriptive logic, and I agree with your point about factual criticism of SCOTUS.
I do take some disagreement with the idea that their power comes only from the perception of their lack of bias and lack of political influence (received or given). I think the majority of their legitimacy comes from the law enforcement structure in the US (police power) and the attorney's general and district attorneys that direct that power. Physicians may not agree with the decision to overturn Roe vs Wade, and may not think the decision to overturn was "legitimate" (after the statements made in their Senate hearings that this was "settled law"), but they don't want to go to jail. Police Power of the courts, and SCOTUS provides a legitimacy. This is enforcement that comes from a different area of government.