It's become increasingly common for the Supreme Court's defenders to attack critics for seeking to delegitimize the Court. But when are legitimacy critiques ... legitimate? I sketch out some thoughts.
So critics of the coverage the Court is receiving are mad because the Court is now being scrutinized to the same extent that every other branch of government is subject to? Sounds pissy to me. If the Court weren’t doing things that required said level of scrutiny, I’m sure the coverage would’ve continued to be as banal as it was previously.
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.
Um, yeah. Criticism is as American as apple pie. While criticizing criticism is almost a funny loop, it’s potentially a red flag. Just make a counter point - if you can…
On the question of legitimacy, an example of a persuasive critique of the Court based in its use of fact-finding, a departure from a longstanding principle of appellate jurisdiction: Sheldon Whitehouse, Knights-Errant, 84 Ohio St. L. J. 837 (2024).
To the extent I have seen example of people criticizing the critics, it seems as if their arguments almost always tend to devolve down to "you just don't like the decisions."
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.
I would rebut that the issue of enforcing decisions and public perception are intertwined. Beacuse court doesn't have any actual direct control over law enforcement, it is necessary for the court's rulings to be perceived as legitimate for them to be enforced. If the court hypothetically lost all legitimacy then the executive branch and their law enforcement could not to enforce their rulings and the court would be powerless.
If Justices engage in eminently critiquable behavior, then they may at some point get well-reasoned criticisms. I would have thought that would be obvious, but it seems not.
Steve, it seems to me that Adkins and West Coast Hotel are a pair of opinions that present an excellent example of the majority in each case making the decision that it preferred and then finding a way to justify their decision using the words of cited cases - but for the benefit of justification rather than for interpretation. This does not happen in most cases, but in some/many difficult cases judges make up their minds how they want cases to be resolved and do so regardless of how bizarre - or dishonest - their reasoning has to be in order to reach their preferred resolution (a conclusion that some of us decided in the middle of first year in law school, after reading the Japanese Internment and Plessy cases).
Respectfully, your approach ultimately reduces “legitimacy” to a matter of subjective judgment in the eye of the beholder. Reasonable minds can and do differ on any SCOTUS decision. For example, you consider Dobbs insufficiently principled and therefore “illegitimate, but many would disagree. And what about Roe? Many view that decision as wholly unprincipled; was it also illegitimate? I think it’s virtually impossible to separate legitimacy as you view it from one’s ideological and political preferences regarding the Court, how it decides cases, and what it decides.
Also, while I certainly don’t question your motives, it’s abundantly clear that many if not most of the Court’s relentless critics care mainly (probably only) about moving it back to the ideological left. They play fast and loose with the concept of legitimacy (for example, accusing the Court itself of being “illegitimate” by virtue of the circumstances surrounding the appointment of some justices) and advocate “reforms” such as court-packing, which would obviously severely damage the Court as an institution. A prominent law school dean describes the justices as “political hacks” and some professors claim it is impossible to teach the Court’s decisions as valid law. How can anyone regard any of this as credible, good faith criticism or motivated by a desire to improve the Court?
As an alternative, I’d submit a straightforward dictionary definition of legitimacy: compliant with applicable laws and rules. Under this objective standard, SCOTUS and its decisions should be accepted as legitimate unless there is something unlawful (as opposed to political) about the justices’ appointments or a particular decision is, for example, procured by bribery or fraud. Otherwise, SCOTUS critics should confine themselves to describing decisions they disagree with as unpersuasive, implausible, and yes, unprincipled—but not “illegitimate.”
In closing, I sincerely wish you a very happy birthday!
Agree completely with first two paras. Many, including me, view Roe as completely made up to suit a political purpose; I know it's now trite, but even RBG understood that the actual Constitutional reasoning in Roe was non-existent. I certainly agree that Alito was stretching to try to come up with something to justify his conclusion other than "They just made it up, and thus it deserves zero deference," but frankly I would have preferred that explanation. I accept that David believes that he is being as politically neutral as possible, but unfortunately he cannot avoid looking at the Court with his political lens, just as I can't. As to third para, probably the best we can do, even if I would dearly love to find some social measure that was applicable. But "Impeach Earl Warren" is different from the current Schumer/Whitehouse/Wyden etc campaign by the fact that virtually all of the campaign's leaders are elected Democratic politicians rather than grassroots ideologues. I have zero doubt that their motives are 100% ideological and political, even if a few of the commentators on the same train may be less so.
I beg to differ with you both (Henry and Joe), and I invite you to show me where I might be wrong by doing as Mr. Shanmugam suggested. See my first comment re: “engaging with the Court’s work on the merits," especially by “engaging deeply with the work of the current Court” under the so-called “originalist approach to constitutional interpretation.”
One test for legitimacy might entail a look at the means by which it is composed. Of the 3 newest justices, one had a seat kept warm by blocking consideration of a legitimate nominee, one by election eve railroading, all 3 by bare Senate majorities with the filibuster conveniently shelved. Another might entail a look at how the “principled” views of justices align with those of their material benefactors. Just a thought (or 2).
It's worth reading Mr. Shanmugam's response to that particular criticism (a link to which Professor Vladeck kindly provided). It really is comical (and surprisingly superficial).
First, Mr. Shanmugam defended the conduct of Republican senators by emphasizing that (merely because they constituted the majority), they had the pure "power" to pack the court with their preferred appointees. But he refrained from calling it what it was (court packing). Instead, he insisted the majority "has the [pure] power to act as it chooses when it comes to judicial nominations." Then, he invoked the Constitution: "There can be no serious doubt that the Senate acted constitutionally in each instance in exercising its power."
Second, Mr. Shanmugam opposed proposals to increase the size of the Court. He failed to address the Constitution. He failed to address the power of Congress (consistent with the Constitution) to change the size of the Court. Instead, he labeled such proposals as "court-packing" and he labeled its "past" as "sordid." Then, he failed to address the greater history of changing the size of the Court, which consists of much more (and is much more appropriate) than he implied. Perhaps most comical was the following criticism: "But beyond that, any effort to pack the Court would inevitably trigger a cycle of retribution." He ignored the Republicans' own obvious recent history of court packing and pretended that "a cycle of retribution" would be started by those he opposes.
Happy birthday, Steve!
So critics of the coverage the Court is receiving are mad because the Court is now being scrutinized to the same extent that every other branch of government is subject to? Sounds pissy to me. If the Court weren’t doing things that required said level of scrutiny, I’m sure the coverage would’ve continued to be as banal as it was previously.
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.
Um, yeah. Criticism is as American as apple pie. While criticizing criticism is almost a funny loop, it’s potentially a red flag. Just make a counter point - if you can…
On the question of legitimacy, an example of a persuasive critique of the Court based in its use of fact-finding, a departure from a longstanding principle of appellate jurisdiction: Sheldon Whitehouse, Knights-Errant, 84 Ohio St. L. J. 837 (2024).
Good article, professor.
Steve, thanks for your nuanced essay on legitimacy. Your approach considers both sides of the argument, and gives me plenty to think about.
To the extent I have seen example of people criticizing the critics, it seems as if their arguments almost always tend to devolve down to "you just don't like the decisions."
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.
I would rebut that the issue of enforcing decisions and public perception are intertwined. Beacuse court doesn't have any actual direct control over law enforcement, it is necessary for the court's rulings to be perceived as legitimate for them to be enforced. If the court hypothetically lost all legitimacy then the executive branch and their law enforcement could not to enforce their rulings and the court would be powerless.
Beautifully written, Professor. Happy birthday!
If Justices engage in eminently critiquable behavior, then they may at some point get well-reasoned criticisms. I would have thought that would be obvious, but it seems not.
Happy Birthday!!
Steve, it seems to me that Adkins and West Coast Hotel are a pair of opinions that present an excellent example of the majority in each case making the decision that it preferred and then finding a way to justify their decision using the words of cited cases - but for the benefit of justification rather than for interpretation. This does not happen in most cases, but in some/many difficult cases judges make up their minds how they want cases to be resolved and do so regardless of how bizarre - or dishonest - their reasoning has to be in order to reach their preferred resolution (a conclusion that some of us decided in the middle of first year in law school, after reading the Japanese Internment and Plessy cases).
Respectfully, your approach ultimately reduces “legitimacy” to a matter of subjective judgment in the eye of the beholder. Reasonable minds can and do differ on any SCOTUS decision. For example, you consider Dobbs insufficiently principled and therefore “illegitimate, but many would disagree. And what about Roe? Many view that decision as wholly unprincipled; was it also illegitimate? I think it’s virtually impossible to separate legitimacy as you view it from one’s ideological and political preferences regarding the Court, how it decides cases, and what it decides.
Also, while I certainly don’t question your motives, it’s abundantly clear that many if not most of the Court’s relentless critics care mainly (probably only) about moving it back to the ideological left. They play fast and loose with the concept of legitimacy (for example, accusing the Court itself of being “illegitimate” by virtue of the circumstances surrounding the appointment of some justices) and advocate “reforms” such as court-packing, which would obviously severely damage the Court as an institution. A prominent law school dean describes the justices as “political hacks” and some professors claim it is impossible to teach the Court’s decisions as valid law. How can anyone regard any of this as credible, good faith criticism or motivated by a desire to improve the Court?
As an alternative, I’d submit a straightforward dictionary definition of legitimacy: compliant with applicable laws and rules. Under this objective standard, SCOTUS and its decisions should be accepted as legitimate unless there is something unlawful (as opposed to political) about the justices’ appointments or a particular decision is, for example, procured by bribery or fraud. Otherwise, SCOTUS critics should confine themselves to describing decisions they disagree with as unpersuasive, implausible, and yes, unprincipled—but not “illegitimate.”
In closing, I sincerely wish you a very happy birthday!
Agree completely with first two paras. Many, including me, view Roe as completely made up to suit a political purpose; I know it's now trite, but even RBG understood that the actual Constitutional reasoning in Roe was non-existent. I certainly agree that Alito was stretching to try to come up with something to justify his conclusion other than "They just made it up, and thus it deserves zero deference," but frankly I would have preferred that explanation. I accept that David believes that he is being as politically neutral as possible, but unfortunately he cannot avoid looking at the Court with his political lens, just as I can't. As to third para, probably the best we can do, even if I would dearly love to find some social measure that was applicable. But "Impeach Earl Warren" is different from the current Schumer/Whitehouse/Wyden etc campaign by the fact that virtually all of the campaign's leaders are elected Democratic politicians rather than grassroots ideologues. I have zero doubt that their motives are 100% ideological and political, even if a few of the commentators on the same train may be less so.
I beg to differ with you both (Henry and Joe), and I invite you to show me where I might be wrong by doing as Mr. Shanmugam suggested. See my first comment re: “engaging with the Court’s work on the merits," especially by “engaging deeply with the work of the current Court” under the so-called “originalist approach to constitutional interpretation.”
One test for legitimacy might entail a look at the means by which it is composed. Of the 3 newest justices, one had a seat kept warm by blocking consideration of a legitimate nominee, one by election eve railroading, all 3 by bare Senate majorities with the filibuster conveniently shelved. Another might entail a look at how the “principled” views of justices align with those of their material benefactors. Just a thought (or 2).
It's worth reading Mr. Shanmugam's response to that particular criticism (a link to which Professor Vladeck kindly provided). It really is comical (and surprisingly superficial).
First, Mr. Shanmugam defended the conduct of Republican senators by emphasizing that (merely because they constituted the majority), they had the pure "power" to pack the court with their preferred appointees. But he refrained from calling it what it was (court packing). Instead, he insisted the majority "has the [pure] power to act as it chooses when it comes to judicial nominations." Then, he invoked the Constitution: "There can be no serious doubt that the Senate acted constitutionally in each instance in exercising its power."
Second, Mr. Shanmugam opposed proposals to increase the size of the Court. He failed to address the Constitution. He failed to address the power of Congress (consistent with the Constitution) to change the size of the Court. Instead, he labeled such proposals as "court-packing" and he labeled its "past" as "sordid." Then, he failed to address the greater history of changing the size of the Court, which consists of much more (and is much more appropriate) than he implied. Perhaps most comical was the following criticism: "But beyond that, any effort to pack the Court would inevitably trigger a cycle of retribution." He ignored the Republicans' own obvious recent history of court packing and pretended that "a cycle of retribution" would be started by those he opposes.
Excellent. And have a belated, and extended, happy birthday.