Judicial legitimacy and the future of the Supreme Court
Excerpts from my Constitution Day lecture at Union University
It’s been a busy few days.
A week ago Caitlyn and I flew to Montreal, Quebec for the annual meeting of the American Political Science Association, where I presented a paper from on ongoing, coauthored research project. We explored the city and—and I cannot stress this enough—ate very well.1
On Sunday we flew home, where we able to spend a few hours with the kids before the beginning of another school week. Then, on Monday, I drove the kids to school and hit the road to Union University in Jackson, Tennessee, where I delivered their annual Constitution Day lecture. I spoke to a class yesterday morning about faith and public life before driving home.
Oh, and in that timeframe, I wrote something for Christianity Today about the U.S. Supreme Court’s latest decision on religious liberty and LGBT rights.
That’s 14 hours of driving over two days following five days in Montreal. Needless to say, it’s really good to be home.
My Constitution Day lecture was titled “After Dobbs: Judicial Legitimacy and the Future of the Supreme Court.” The lecture walked through how the recent Dobbs case—which, of course, overturned Roe v. Wade and once again allowed states to regulate abortion as they see fit—has sparked debates about a “crisis of judicial legitimacy.”
I’m sharing sections from the lecture below. As always, thank you for reading.
The pro-choice community’s reactions to Dobbs wasn’t the first instance of outrage following a decision from the Supreme Court. In fact, it wasn’t long ago that many of the same voices who lauded the Dobbs decision were decrying some of the Court’s other decisions. Consider the 2015 decision in Obergefell v. Hodges, which effectively legalized same-sex marriage across the country. Ryan Anderson, then with the Heritage Foundation, called the decision “judicial activism, plain and simple,” while former Arkansas governor Mike Huckabee dismissed Obergefell as having been decided by “five unelected lawyers.” Or consider a more recent decision – Bostock v. Clayton County, Georgia, which essentially gave sexual orientation and gender identity protection under federal civil rights law. In an essay for Christianity Today, Andrew Walker, who celebrated the Dobbs ruling, critiqued the Bostock decision by predicting “the bleak future awaiting religious liberty.”
The Constitution of the United States of America has proved to be a resilient and hardy document. Yes, it is regularly contested and debated, as it has been since it was first proposed over 230 years ago. But structurally, the contours of American government today look remarkably similar to how they did in the Constitution’s original formulation. Congress passes bills. The president signs or vetoes them. The federal system provides power to national, state, and local government, at different levels. The Supreme Court keeps an eye on things. These are simple enough principles to keep track of.
The Court is a political institution, though it is often seen as being above politics, focused solely on providing, as it says on the Court’s building, “equal justice under law.” It is in this disconnect where we find a timely (if not new) concern: a crisis of judicial legitimacy.
That said, if we are going to identify one branch of government that has expanded beyond what the framers envisioned, it is probably the judicial branch (though I’d entertain arguments for the presidency). The principle of judicial review, from which the Supreme Court gets its power to decide constitutional and statutory cases, is not expressly granted in Article III of the Constitution. Nevertheless, the Court’s decisions today are of major interest to those following the development of American law and politics. Supreme Court vacancies and nominations dominate the agenda of the president and Congress for weeks, if not months. The Court is a political institution, though it is often seen as being above politics, focused solely on providing, as it says on the Court’s building, “equal justice under law.” It is in this disconnect where we find a timely (if not new) concern: a crisis of judicial legitimacy.
Writing in Federalist 78, Alexander Hamilton says that the Supreme Court’s power stems from its reliance on the other branches of government; it does not have Congress’ power of the purse or the presidency’s power of the sword, but instead possesses what Hamilton called “merely judgement.” Should the Court sufficiently step outside its established lane and upset this balance of power, the other branches could act to modify the Court, by changing the number of its justices or mandating term limits, perhaps. Or, they could simply ignore the Court entirely. Seen in this way, the Court’s legitimacy—its standing in the eyes of the other branches of government and the American people—does matter.
Dobbs gave critics at least three bases on which to question the Court’s legitimacy: the leaking of Justice Alito’s draft opinion, several weeks before the decision was officially announced; the Court’s overturning established precedent; and the impression of an overtly political Supreme Court. First, the leak. It is hard to describe just how unprecedented it is for a draft opinion to leak out from the Supreme Court. Part of the reason has to do with the internal secrecy of the Court itself. There is a very small circle of people who would have access to these kinds of materials: the Court’s administrative staff, who are nonpolitical employees whose work at the Court may span decades; the law clerks assisting the justices, who are some of the best and brightest young lawyers in the country; and, of course, the justices themselves.
Dobbs gave critics at least three bases on which to question the Court’s legitimacy.
The administrative staff has little reason to release this kind of information; they’d be betraying the trust of the institution they’ve dedicated their lives to, and would certainly be fired if found out. The clerks have even less reason to leak things to the press. After a year of service to a justice, clerks usually command signing bonuses from top law firms well into six figures, and their annual salaries are almost always superior to those of their former bosses on the Court. Getting caught as a clerk for leaking confidential materials would end the young lawyer’s career before it begins. As for the justices, each will tell you of the camaraderie and collegial environment the Court tends to craft. Even the most diametrically opposed justices can cultivate deep friendships with one another – look no further than the relationship between Antonin Scalia and Ruth Bader Ginsburg. Leaking opinions to the media would undercut these deeply forged and important relationships.
This is why the leak of the Dobbs opinion was so unusual. Whoever leaked it to the press betrayed the trust of his or her colleagues. Speculation was immediate. Some believed it was clearly a left-leaning justice or clerk, whose aim was to stoke public opinion against the Court prior to perhaps its most controversial decision in fifty years. Others believed the leaker was on the right, aiming to “lock in” the vote of a justice who was originally aligned with the majority opinion but was perhaps second-guessing that decision. We still don’t know what really happened, and perhaps we never will. Still, should this become a common practice—and now that this line has been crossed, we could be heading in that direction—the Court could come to be seen as just another political branch whose members routinely spar with one another through a compliant media and impassioned public. The Court’s power of “merely judgement” would be severely weakened.
Precedent gives the judicial branch an order that would be lacking were courts free to simply ignore prior decisions made by higher courts.
Turning next to Dobbs’ treatment of precedent, the dissenting justices and those critical of the decision repeatedly cited a two-word Latin phrase. Stare decisis is a legal principle that means, “let the decision stand.” It is not an inviolable rule, but it is an instructive principle. Stare decisis and precedent promote stability in American legal development. The Constitution may be strong, but it is often lacking in details and specific instructions for contemporary problems and issues. Precedent gives the judicial branch an order that would be lacking were courts free to simply ignore prior decisions made by higher courts. A judicial system without stare decisis would essentially become an unelected legislature, bound to nothing but the whims of the judges and justices themselves.
As I said a moment ago, precedent is not an inviolable rule. Many Supreme Court decisions have later come to be seen as odious – Dred Scott v. Sandford, Plessy v. Ferguson, Buck v. Bell, and Korematsu v. U.S. all come to mind. And when these decisions are overturned or otherwise rejected by a later group of justices, the Court is upending precedent and rejecting the doctrine of stare decisis. However, in these instances there is largely universal demand for rejecting stare decisis. You would be hard pressed to find someone today so wedded to the doctrine of precedent as to think Brown v. Board of Education, which overturned Plessy v. Ferguson, was wrongly decided. Rather, your support for stare decisis is probably dependent on your opinion of the case currently in the crosshairs. Still, a Supreme Court that increasingly ignores stare decisis runs the risk of being seen as illegitimate by a large percentage of the country. And when that happens, the ability of the Court to act on anything is threatened.
Finally, a primary criticism of Dobbs is that the Court was acting in an overtly political manner. The argument goes like this: When Justice Antonin Scalia, a stalwart conservative on the Court, died in February 2016, and with more than eight months before the next presidential election, Senate Republicans announced they would not hold hearings to fill his vacancy under President Obama. While certainly controversial and in breaking with recent practices, this decision was by no means unconstitutional. After Donald Trump won the next presidential election, Senate Republicans confirmed Scalia’s replacement, Neil Gorsuch, fairly quickly, while also ending the 60-vote requirement historically needed to advance these nominations; Senate Democrats had ended this requirement several years earlier for other kinds of federal judges, due to Republican opposition to then-President Obama’s judicial nominees.
Dobbs was far from the first, and will certainly not be the last, case to test the legitimacy of the Supreme Court.
Jumping ahead four years, when Justice Ruth Bader Ginsburg died in September 2020, Senate Republicans announced they would hold hearings to fill her vacancy under President Trump, with less than two months before the next presidential election. Amy Coney Barrett was confirmed to the Court the following month, about a week before the election that would be won by Joe Biden.
For those critical of this process, it isn’t hard to see how the solid 6-3 conservative majority we have now could have otherwise been a 5-4 liberal majority. And that probably would have yielded a far different outcome in Dobbs than the one we ended up with. To be sure, there is nothing unconstitutional about the actions Senate Republicans took to confirm justices Gorsuch and Barrett. But when Supreme Court decisions can be read through the lens of cold and calculated political tactics—tactics from the bodies that put the justices on the Court, and of the justices themselves—questioning the legitimacy of the institution—one that, at least in theory, should be above the political fray of the elected branches of government—will not be far behind.
Dobbs was far from the first, and will certainly not be the last, case to test the legitimacy of the Supreme Court. In many ways, the apex for concerns over the Court’s legitimacy and the future of American constitutionalism came in 2000, with Bush v. Gore, when the outcome of a presidential election hung in the balance. But even then, with some of the highest stakes imaginable, the response from the aggrieved parties was relatively modest. Vice President Gore, while registering his disagreement with the decision, formally conceded the election, and soon thereafter Washington DC was back to business as usual. I don’t pretend that the debate over abortion is a minor concern compared to the outcome of a presidential election, but it certainly doesn’t dwarf it, either.
Of course, history cannot predict the future. If we see another version of Bush v. Gore following the 2024 election, will our actors and branches, after eight years of incendiary rhetoric and allegations of stolen elections, hold up? While I wouldn’t necessarily bet my modest college professor’s salary on it, I’m still generally optimistic in the strength of American political institutions. The Court’s controversial decisions, to date, have all attracted their share of criticism and scorn. But as long as the other elements of the American political system have abided by the principles laid down in the Constitution and in our broader traditions, this system has proven resilient indeed.
Are there concerns about the future of the Supreme Court? Absolutely. For example, I am increasingly worried about the nominations process for Supreme Court justices, and federal judges in general. I cannot imagine a scenario where the president of one party and the Senate of another party are able to fill a vacancy on the Court. It wasn’t long ago that Senator Ted Cruz, foreseeing a Hillary Clinton win over Donald Trump in 2016, remarked that the Court’s membership could theoretically be left at eight justices through the duration of Clinton’s hypothetical term, suggesting that a Republican Senate should not confirm a Democratic President’s nominee to replace Justice Scalia. What, exactly, is the motivation for a majority of one party to help an opposing president secure a lifetime appointment to the highest Court in the land? The process of nominations and confirmations seems irrevocably broken, following years of posturing and increasingly brazen lines drawn and crossed by both Democrats and Republicans.
While a decision like Dobbs occasionally brings the Court to the forefront of America’s consciousness, this intense focus is usually fleeting, replaced by the latest conflict between Congress and the President, actors over which the public actually has tangible control.
Still, the Court’s legitimacy, while perhaps shaky, is not crumbling. Public opinion surveys still give the Supreme Court the highest approval numbers of any branch of American government. Part of the reason may be because the public is generally uninformed about what the Court does or who its justices are. This relative obscurity may end up working in the Court’s favor in the years to come. While a decision like Dobbs occasionally brings the Court to the forefront of America’s consciousness, this intense focus is usually fleeting, replaced by the latest conflict between Congress and the President, actors over which the public actually has tangible control.
Paradoxically, the unelected Supreme Court may have the strongest legitimacy of any branch of government, so long as the public continues to view it was above the day-to-day wrestling matches of American politics. This may not be how things really work, but as is the case with much of our politics these days, perception is sometimes more important than reality. For our nation’s highest court, this may be the best defense against waning legitimacy in an increasingly polarized society.