Judging ‘Legitimacy’
Terry H. Schwadron
Oct. 4, 2022
The new Supreme Court session opened yesterday amidst a lot of public talk about a loss of the court’s legitimacy and subdued talk about at attempts to address it.
At heart, the discussion itself reflects an unhappiness over the sudden turn in the interpretation of “law” and the meaning of the Constitution when the only change has been the addition of enough justices to constitute a winning right-leaning result on almost any case that comes before the court.
Making it worse, recent decisions to overturn precedents over gun safety, 50 years of abortion rights, the power of the federal government to enforce the Clean Air Act, a defender of certain religious liberties above all, and in favor of state controls over what had been federal protections for voting are unpopular.
The court is perceived as having become partisan in a host of issues that lend themselves to Left-Right delineation and having done so in a way that is abrupt and with cherry-picked arguments that skirt legal precedent. Polls see this court majority as out of step with the country’s overall values.
Let’s even set aside the idea that this Supreme Court majority apparently disdains normal reach of ethics laws, and that it is perfectly fine for Justice Clarence Thomas to sit on a Donald Trump case while his wife actively seeks to undercut Joe Biden’s election against Trump.
In various public remarks recently, Chief Justice John G. Roberts Jr., has pushed back against the “legitimacy” challenges, and Justice Samuel Alito, who has penned or led the more controversial decisions, has simply rejected the idea that there should be a debate.
Some Test Questions
So here are a couple of rough tests we can apply as the season unfolds to argue to these very same justices that it has a “legitimacy” question:
Let’s keep a list of arising cases that have relatively identifiable partisan sides, those that specifically favor Republican-majority state legislatures, for example, as does the upcoming argument to allow a legislature to overrule an election result. Include those in which right-leaning or left-leaning groups outside the court take a lot of interest, including the first case on the docket, in which the federal right to regulate watershed lands is at issue. By contrast, I think we can agree that cases defining bankruptcy law don’t carry a lot of partisan sting.
Let’s then count how many times this conservative majority decides cases with the identifiably right-leaning side, that is how often does the “law” in these politically sensitive cases happen to end up aligning with the partisan side responsible for putting the justice on the court.
How many involve overturning a previous case decided by this same Supreme Court before it had the current number of self-identifying conservative judges? Maybe even add an extra point for reversals decided opposite from how the justices said they handle them during their confirmation hearings.
And then, how often is there polling information, substantial public mobilization or legislative action that pulls in the opposite direction. In other words, is the decision “out of step” with a wide interpretation of American sentiment?
Add in how many times this court now uses its “shadow docket” power to simply decide an issue without a full hearing, treating it as an imminent emergency.
In the last year, those bigger decisions all would lean in a single direction — abortion, guns, religion, voting cases.
A History of Protest
Chief Judge Roberts is correct in saying there always have been public protests over a singular decision. Declaring in the Citizens United that corporations have the same political free speech to throw huge, undocumented money into political campaigns is just one that comes to mind.
But doing so in a pattern of behavior is something else.
As Ruth Marcus notes in a Washington Post column, “Nothing in the behavior of the court’s emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation — and more are on the way.”
The court has listed cases about race, gay rights and the fundamental structures of democracy even as the the abortion ruling continues to reverberate through our confused and contradictory legal, medical and ethics systems.
Beyond the court itself, we see judges appointed by Donald Trump and approved by a Republican Senate majority challenging decisions up and down the line. And we see Republican legislatures passing bills simply to draw a challenge that will be moved with alacrity to this Supreme Court majority.
Is there a question about legitimacy. You can bet on it. But let’s see what a season of decisions brings while we’re watching it more closely.
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