The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Recently, several Justices have opined on the legitimacy of the Supreme Court.
The Chief urged people not to criticize the legitimacy of the Court, simply because they disagree with an opinion.
"You don't want the political branches telling you what the law is. And you don't want public opinion to be the guide of what the appropriate decision is," said Roberts, who added, to laughter, "Yes, all of our opinions are open to criticism. In fact, our members do a great job of criticizing some opinions from time to time. But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court."
Justice Kagan observed that that judges undermine their legitimacy when they impose their own personal preferences on the people.
"Nobody elected me," Kagan said in a public conversation at the Temple Emanu-El Streicker Center in Manhattan. "And the only reason people should accept what judges do is because they're doing law, they're doing something that they were put there to do. And so I think judges … undermine their legitimacy when they don't act so much like courts and when they don't do things that are recognizably law, and when they instead stray into places where it looks like they're an extension of the political process, or where they're imposing their own personal preferences."
And, Kagan added that the Court is legitimate when it acts like a Court:
"I would say it's when a court is legitimate when it's acted like a court," Kagan said. "A court does not have any warrant, does not have any rightful authority, to do anything else than act like a court. It doesn't have the authority to make political decisions. It doesn't have the authority to make policy decisions. Its authority is bounded and the court should be constantly aware of that."
Justice Sotomayor also joined the fray:
She added: "When the court does upend precedent, in situations in which the public may view it as active in political arenas, there's going to be some question about the court's legitimacy."
In the wake of Dobbs, I adopted a new rule of thumb for reading discourse about the Supreme Court. Whenever anyone starts talking about "legitimacy"–yes, scare quotes–I stop reading. Immediately. There is nothing new that can be said about the Supreme Court and legitimacy. Really, nothing new. Casey made the case about as well as it could be made. For three decades, people kept repeating Justice Souter's "wisdom"–more scare quotes.
The Dobbs majority and dissent vigorously disagreed on Casey's conception of "legitimacy." Ultimately, the Dobbs majority concluded that the Court should not concern itself with outward-looking concepts like "legitimacy." The Chief, as well as the Dobbs dissenters, insisted the Court should take account of such concerns.
I explained this divide in a Newsweek column:
Casey's understanding of legitimacy, Alito suggested, "went beyond this Court's role in our constitutional system." Stare decisis should not be "subject to the vagaries of public opinion." The Court, Alito explained, "cannot allow [its] decisions to be affected by any extraneous influences such as concern about the public's reaction to [its] work." In the span of a few paragraphs, the majority wiped away a generation of received wisdom about legitimacy.
Indeed, Dobbs redefined legitimacy altogether. Alito quoted from Rehnquist's Casey dissent: the Supreme Court does not "derive its legitimacy…from following public opinion," but by faithfully deciding cases based on written law. Justice Alito and his colleagues explained that "[w]e do not pretend to know how our political system or society will respond to today's decision overruling Roe and Casey." Nor do they care.
And nor should they care when the press or others ask about legitimacy.
Of course, the irony is that the majority restored an issue to the political process, while the dissent would have let five robed lawyers continue to dictate abortion policy nationwide. Kagan's concerns about legitimacy are better suited for Obergefell, which wrested the issue of marriage from the political process based on penumbras. For progressives, legitimacy is defined as maintaining the precedents of the Warren and Burger Courts. When the Court created those precedents out of thin air, legitimacy was never in question. But when the Court exorcises those phantasmal precedents, legitimacy comes into doubt. Indeed, for progressives, stared decisis is defined as stand by the precedents of the Warren and Burger Courts. The script at this point is predictable.
My advice to the Supreme Court justices: whenever anyone asks about the Court's legitimacy, the answer should be "next question." Or, if they are feeling more loquacious, "Our job is to decide cases based on law, without fear or favor of public perception."
Maybe I can frame the issue in tautological terms that will resonate with the Chief: the way to stop worrying about judicial legitimacy is to stop worrying about judicial legitimacy.