“Legitimacy is for losers,” a political scientist once said. It’s a profound concept. The winning side in a decision will gladly accept it without asking why. But the losing side — whether the decision is made by a basketball referee or the Supreme Court — will accept defeat only if they believe the decision was made fairly and by the book.
That’s why the politicization of the U.S. Supreme Court is so alarming. People on the losing end of Supreme Court decisions increasingly feel that justice is not being served. That’s a scary situation for the high court, and for American democracy in general.
“The Supreme Court has no power to enforce its decisions,” Daniel Epps, a law professor at Washington University in St. Louis, told me on Friday. “It doesn’t have an army. The only thing it has power to do is write PDFs and put them up on its website.”
All the Supreme Court really has to go on is the public’s acceptance of its rulings as legitimate. “Once you lose that, it’s not really clear what the stopping point is,” Epps said. “I see that as a fundamental threat to society.”
Epps is right. By one economic theory, the choice of whether to obey the law is like any other decision, a weighing of costs and benefits. But you know from personal experience that’s not true. There are plenty of times you could have lied, cheated or stolen with impunity. You did the right thing anyway because you more or less accepted the legitimacy of the laws, how they were enacted and how the people who enacted them were selected.
I’m not going to delve into the substance of the Supreme Court’s decision on Friday in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. I’ll only point out that those on the losing side weren’t just disappointed. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor went way beyond that, flatly stating in their dissent that the majority’s decision “undermines the court’s legitimacy.”
Sotomayor was even blunter in oral arguments in December. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she asked, before answering her own question: “I don’t see how it is possible.” Sadly, saying so out loud also undermines the court’s legitimacy.
For the losing side, the sting of the decision was made worse by the events that led to it. In 2016, Mitch McConnell, then the Senate majority leader, blocked a vote on President Barack Obama’s nomination of Merrick Garland to the Supreme Court, defending his action on the grounds that the nomination came just eight months before that year’s presidential election. But in 2020 McConnell hurried through President Donald Trump’s nomination of Amy Coney Barrett, with the final confirmation vote coming just a week before that year’s election. That got Republicans what they wanted but tore a hole in the fabric of democracy.
In 2018, before the Senate vote on his Supreme Court nomination, Brett Kavanaugh worked hard to persuade Senator Susan Collins, Republican of Maine, that he was no threat to Roe v. Wade. “Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,” he said in a meeting with Collins, according to notes kept by staff members, adding: “I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.” Collins now says she feels she was misled.
The Supreme Court in some ways resembles the Federal Reserve. Its decision makers are unelected technocrats who use arcane methods and vocabularies (“stare decisis” for the court, “zero lower bound” for the Fed). The obscurity of what they do makes it all the more important for the public to trust that whatever is happening behind the curtain is on the up and up. Yet in the latest Gallup poll data, only 25 percent of Americans polled in the weeks before Dobbs said they had a great deal or quite a lot of confidence in the Supreme Court. That was a new low in nearly 50 years of polling.
There is no one on the court today like Justice Anthony Kennedy, who, despite being a Republican appointee, was independent and often unpredictable in his jurisprudence, Epps said. Kennedy retired in 2018. “The screening is far more rigorous” now than when Kennedy joined the court in 1988, so a freethinker such as he would never get on the bench, Epps said.
Of the Republican-appointed justices on the Supreme Court, only Chief Justice John Roberts seems greatly concerned with preserving the impression that the court is apolitical. In the Dobbs case he voted with the majority in upholding a Mississippi law restricting abortion but said he would have taken “a more measured course,” stopping short of overruling Roe outright.
The Dobbs decision came one day after the Supreme Court struck down New York’s limit on carrying guns outside the home. In Dobbs, the court upheld states’ rights to restrict their citizens’ behavior, while in the New York case it did the opposite. That may appear inconsistent to supporters of abortion rights, but it’s precisely what the average Republican voter wants, said Maya Sen, a professor at Harvard Kennedy School.
“We take as a given that political actors will want a judiciary that serves their interests,” said Sen, who is the co-author with Adam Bonica of a 2020 book, “The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary.” “For many Republicans this is a day of celebration, of victory,” she said.
It was James Gibson, a colleague of Epps at Washington University who is an expert on the legitimacy of the Supreme Court, who coined the “legitimacy is for losers” phrase. In a chapter in a 2015 book, he wrote: “Institutions do not require legitimacy when they are pleasing people with their policies. Legitimacy becomes crucial in the context of dissatisfaction.”
Really, then, legitimacy isn’t just for losers. It’s for the court itself.
Number of the week
55 percent
The estimated value of the Institute for Supply Management’s seasonally adjusted purchasing manager manufacturing index in June, down from 56.1 percent in May, according to the median of estimates from economists surveyed by FactSet. Levels above 48.7 percent over a period of time generally indicate expansion of the economy, according to the institute. The official number is scheduled to be reported on Friday.
Quote of the day
“Then were the wide gates of great Russia opened up; then over the frontiers and through the harbors, like the tides in the spacious ocean, there did flow in constant motion, in the one direction, the sons [of] Russia, journeying forth to acquire knowledge in the various sciences and arts, and, in the other direction, foreigners arriving with various skills, books, and instruments. Then to the study of Mathematics and Physics, previously thought of as forms of sorcery and witchcraft, but now arrayed in purple, crowned with laurels, and placed on the Monarch’s throne, reverential respect was accorded in the sanctified Person of PETER.”
— Mikhail Vasil’evich Lomonosov, “Panegyric to the Sovereign Emperor Peter the Great” (1755)
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