The Volokh Conspiracy
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Kannon Shanmugam on the Legitimacy of the Supreme Court
A prominent appellate practitioner responds to recent attacks on the justices and the Court.
Political attacks on the Supreme Court and individual justices are increasingly commonplace. Those who disagree with the court's rulings are not content with criticizing the Court's holdings, rationales, and reasoning. They increasingly target the Court itself, and question the integrity of the justices.
The Supreme Court bar, by and large, has been relatively quiet in the face of these criticisms. Last week, however, noted appellate practitioner Kannon Shanmugam delivered remarks at Duke Law School in defense of the Supreme Court's legitimacy. His remarks are notable, and have attracted attention (as in this WSJ editorial). [The whole speech is available here.]
Here is a taste:
I have been reluctant to give formal speeches about the law in general or the Supreme Court in particular. You see, I have always thought of myself as a practicing lawyer, not a pundit, and a country lawyer at that—the kid who improbably went from a trailer park in Kansas to a corner office on K Street. As a lawyer, my job is to play in the game; I leave the task of color commentary to others.
But today, I am breaking that habit to address the recent criticisms of the Supreme Court's legitimacy. I am doing so for a simple reason: because I revere the Supreme Court. I had the fortune of a lifetime to clerk at the Court for one of the greatest Justices of this generation or any other, Antonin Scalia. Since then, I have devoted my professional life to the Court, having spent the last 20 years arguing cases there. My wife and I even got engaged on the Court's front steps. And I firmly believe that, for all the challenges it faces, our Supreme Court is the finest high court in the world—a model for other countries to follow.
Perhaps for that reason, I have found the recent attacks on the Court to be dispiriting. At the risk of giving away the punch line to my remarks, I believe that the criticisms of the Court's legitimacy are unfounded. But more than that, I believe that attacks on the Court's legitimacy are dangerous—undermining public confidence in the Court and imperiling the rule of law. Finally, I believe that critics of the current Court would be better served engaging with the Court's work on the merits.
Now, I am aware that, in defending the Court, I will inevitably be subject to criticism myself: specifically, the criticism that I am kowtowing to the Court before which I practice. I hope that my track record refutes that criticism. I have never testified for or otherwise endorsed a Supreme Court nominee; in fact, with one exception for a longtime colleague, I have never signed a letter supporting a judicial nominee at any level. And I am at a stage of my career where I have little to gain personally from weighing in on these issues. But if I am criticized, so be it. I believe that those of us who practice regularly before the Court, and who thus have a unique familiarity with the Court and its work, should speak up when we believe the Court is being unfairly attacked.
As Shanmugam notes, attacks on the Court's legitimacy have potentially far reaching effects.
the greatest danger the attacks present is to the rule of law itself. The phrase "rule of law" has rather lost its meaning, with both sides in the political debate often using it simply as a shorthand for decisions with which they agree. But what the "rule of law" truly connotes is that we live in a society where all of us adhere to the law, including judicial decisions. Justice Breyer has frequently spoken about how remarkable it was that, when the Supreme Court effectively resolved the 2000 presidential election in Bush v. Gore, everyone immediately agreed to abide by it. And when I was first asked about whether the Supreme Court was "legitimate"—on a panel at NYU almost exactly two years ago—I expressed skepticism that there could ever come a time when elected officials or citizens would refuse to obey a Supreme Court decision.
But now, I am less confident. Over the last two years, we have seen the President criticizing the Court, in the wake of adverse decisions, in increasingly strident terms. I believe we are not so far from a President saying, in the manner of Andrew Jackson, "John Roberts has made his decision; now let him enforce it." And if you are unsure about that, ask yourself this question: if the Court ever has to resolve another presidential election, how confident are you that either side would simply acquiesce in the Court's decision?
And it's not just a question of presidential elections. One could imagine presidential defiance of Court decisions on a wide range of subjects. And it is perilous (and naive) to assume that any future defiance of a Court order would come from a progressive president resisting a conservative court.
The Court is hardly above criticism. Indeed, many of its decisions are quite deserving of criticism. Yet there is an important difference between saying the Court is wrong and claiming it is illegitimate.
