Is the United States Supreme Court a Legitimate Tribunal?

“It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit… But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” 

Conservative Associate Justice Samuel Alito

“Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.” 

Conservative Chief Justice John Roberts.

“Overall the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kinds of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences that we're, you know, making everybody live with.” 

Liberal Associate Justice Elena Kagan

“Supreme Court justices tend to wipe the slate clean at the start of a new term, the bruised feelings occasioned by tough cases eased by a summer break… But this year, some justices are engaging in an extended and unusual public disagreement over the court's legitimacy following the decision to overturn Roe v. Wade.

“The latest comments (see above) came Tuesday night [10/25] from conservative Justice Samuel Alito, the author of the June decision that took away women’s constitutional protections for abortion. But the dust-up began months earlier with liberal Justice Elena Kagan, who has made a series of comments about the court's legitimacy. On Friday [10/21], she had said she was hopeful but reserving judgment on whether a court dominated 6-3 by conservatives can again find ‘common ground.’” Jessica Gresko, writing for the October 26th Associated Press.

Gallup has been tracking public approval of the Supreme Court for half a century. Until recent poll results, the lowest American approval level ever received by the court was 53%. The current Court, before the addition of Ketanji Brown Jackson, managed to fall below even that horrible confidence level in that poll released by Gallup on September 29th. The summary is worth noting: “Forty-seven percent of U.S. adults say they have ‘a great deal’ or ‘a fair amount’ of trust in the judicial branch of the federal government that is headed by the Supreme Court. This represents a 20-percentage-point drop from two years ago, including seven points since last year, and is now the lowest in Gallup's trend by six points. The judicial branch's current tarnished image contrasts with trust levels exceeding two-thirds in most years in Gallup's trend that began in 1972.”

I have to stress that “legitimacy” is not the same thing as “lawful” or “constitutional.” Indeed, judicial systems in Russia, China, North Korea and Iran are lawful under their systems of laws, but their results are generally not considered “legitimate” by most of the rest of the world… or even their own people. Further, legitimacy does not negate every ruling made, usually just those general rulings over personal, religious and political matters. How did the Court get here, and when did it begin to move from pure judicial/constitutional issues to “reinterpreting” the Constitution along partisan political lines? Even as some members of the Court (like the late Antonin Scalia) claimed to be “originalists” – applying the constitutional provisions as of the time they were passed without reference to social or technological change – it is remarkable how wide of that mark their opinions actually became.

In recent memory, appointments to the Supreme Court have increasingly been subjected to partisan “litmus tests” or, since the Reagan era, the recommendations of ultra-right-wing Federalist Society, a political non-profit that introduced partisan bias to counter the neutral qualification recommendations from the American Bar Association. Republican Presidents have, for the most part, followed the recommendations from that society since. Where Republicans have controlled the Senate, as they did in 2016, they have also been willing to block liberal appointments to the Court. As President Barack Obama nominated Merrick Garland in March of 2016, the GOP would not allow his confirmation to reach the Senate floor, claiming it was a lame duck appointment. But somehow when Donald Trump nominated Amy Coney Barrett in September of 2020, that vastly clearer lame duck reality slipped by without GOP objection.

The cases that flowed from an increasingly partisan, right-wing “originalist” court, slowly unraveled precedents and long-standing legislation. In effect this conservative bench was implying that those earlier Supreme Court panels lacked legitimacy, and that their newly configured court was the only legitimate Supreme Court on those matters. Seriously. Let’s go back to 2008.

Beginning with District of Columbia v. Heller, decided in 2008, the court’s conservative justices helped reinforce the loyalty of single-issue gun-rights voters for the Republican Party, by simply skipping over the “well regulated militia” phrase in the Second Amendment, completely misciting British law at the time and failing to recognize the difference between modern weapons and the flintlocks and muskets that existed when the amendment was passed. The 2010 Citizens United v. FEC case effectively gave rich, and not so coincidentally mostly GOP political contributors, a virtually unchecked and uncapped right to buy elections by treating corporations and business entities (including political action committees) as individuals… even though none of those business structures existed in 1789 when the First Amendment was passed.

In two cases, the 2013 ruling in Shelby Country v. Holder and the 2021 holding in Brnovich v. Democratic National Committee, the increasingly partisan and radicalized Supreme Court gutted the Voting Rights Act of 1965 (as amended in 2008), after which red states began serially amending their election laws, introducing new voting restrictions and gerrymandering, to shut down voters likely to oppose incumbent GOP candidates and issues.

Skipping over several other partisan rulings, the pièce de résistance, was the June 2022 reversal of a 49-year-old Roe v. Wade precedent (by Dobbs v. Women’s Health Organization). With the Court now facing cases challenges to the legality of partisan gerrymandering and whether state legislatures have a constitutional right to supersede voter choices, both highly charged GOP efforts to overturn or prevent election results that go against them, the very question of democracy is at issue. The Court could have let lower court rulings stand, protecting individual rights and requiring balance in redistricting. They did not. Regardless of the ultimate rulings, that willingness to entertain the issue alone brings this 6-3 Supreme Court panel’s legitimacy into question.

Add the exemption of the Supreme Court from any standard of ethics, where conflicts and obvious bias simply undermine public confidence in the Court’s perceived neutrality, and you have another strong argument against according this Court with a mantle of legitimacy. How else can you justify Associate Justice Clarence Thomas’ failure to recuse himself – even being the lone pro-Trump vote on the entire panel on whether Mr. Trump was required to provide documents to the January 6th congressional committee – when his wife Ginni was heavily involved in Trump’s efforts to overturn the 2020 election? On any Trump matter?! Simply, to claim legitimacy, the Court needs to act legitimately. The public seems to agree. This Court, so far, has not!

I’m Peter Dekom, and on the question of the legitimacy of the current partisan configuration of the John Roberts Supreme Court, my strong opinion that they lack the very legitimacy of the Supreme Court panels they have reversed.