The Supreme Court Legitimacy Crisis
DUSTIN GARZA: The Supreme Court is currently undergoing a crisis of legitimacy that undermines American government. Justices today are more interested in furthering their own political agendas rather than providing sound legal interpretations of our Constitution, which has eroded trust in the U.S. legal system.
An essential part of our government is the belief that our courts are fair and just, especially the highest court. However, in recent years the Supreme Court has undermined this belief. Justices have become more ideological and less transparent, leading the Supreme Court to be seen in an increasingly negative light. This poses serious consequences for our Judicial system and the American Government as a whole.
In the past few years we’ve seen the Conservative Supermajority on the Supreme Court pass increasingly controversial opinions, most notably Dobbs v. Jackson, which reversed Roe v. Wade and consquentially stripped back the right to abortion. In addition to depriving women of a personal, and often lifesaving medical procedure, the decision is extremely unpopular: only 13% of Americans that believe abortion should be illegal in all circumstances. . Dobbs v. Jackson also blatantly disregards Stare Decisis, an important legal principle that calls for courts to make decisions based on previous rulings. Stare Decisis adds stability to the legal system, and adds legitimacy to the Court as they aren’t undermining previous decisions. Regardless of whether the legal interpretation is sound, the optics of this decision have dire consequences for how the public perceives our highest court. This is just one of many actions the Supreme Court has taken in recent years that undermines its legitimacy in favor of short term gains.
In addition to the Dobbs v. Jackson decision, the Supreme Court’s use of the shadow docket reveals the Court’s lack of transparency. The shadow docket is a way for the Court to rule on procedural matters without undergoing the lengthy process that comes with official decisions. Recently however, the Supreme Court has used the shadow docket for more contentious cases, passing Conservative decisions with little transparency. For example, the Supreme Court recently used the shadow docket to pass Roman Catholic Diocese of Brooklyn v. Cuomo, which struck down New York’s Covid-19 safety restrictions on religious services. Other recent rulings include conservative decisions on gerrymandering, abortion access, and envornmental regulation. The Supreme Court’s legitimacy is heavily tied to its extensive process in which the justices wait for lower courts to establish facts and then weigh in after receiving a full briefing and holding oral arguments. Once a ruling is made, the Supreme Court is expected to provide detailed explanations of their decisions. The shadow docket bypasses this necessary process, leading to a decrease in the transparency, and as a result the legitimacy of the court.
Another issue with the Court is the increasing politicization of the appointment process. A revealing example of this in recent memory is Senate Minority Leader Mitch McConnell’s refusal to even hold a vote on President Obama’s nominee, Merrick Garland in 2016. Sen McConnell’s justification was that it was an election year, so the next president should choose the Justice. Nominations that do reach the senate have seen an increasingly partisan divide. Near unanimous confirmations were once common, with Justice Anthony Kennedy being confirmed 97-0 in 1988 by the senate, and Justice Ruth Bader Ginsburg being confirmed 96-3 in 1993. However, the past 4 appointments have been passed strictly along party lines, garnering no bipartisan support. Both parties today appoint justices under the assumption that they will get no votes from the other side, leading to polarization and partisanship in the Court. The Justices we see in the Court today are increasingly associated with the hard fought political battles that led to their appointment, rather than their legal scholarship and expertise in the field.
Public perception is uniquely important to the Supreme Court for a few reasons. Our current iteration of the Supreme Court leaves it with few limits on its judicial power. However the court has no actual methods of enforcement should the general populace or other branches of government refuse to heed their decisions. This condition leaves our Supreme Court uniquely reliant on perceived legitimacy.
Today, just 28% of Democrats have a favorable view of the Supreme Court, compared with 73% of Republicans. Political commentators and government officials have suggested extreme measures such as rethinking life tenure, reducing federal jurisdiction, impeaching Justices, disobeying Supreme Court decisions, or packing the court with additional members. These reforms would have been unthinkable just a few years ago, but seem more reasonable given how far perceptions of the Court have fallen.
A complete loss of legitimacy of the Supreme Court would be unprecedented, and there’s no telling what would happen to our modern courts if this were to happen. If the Supreme Court continues to make decisions with little regard for their legitimacy, this could spell disaster for our entire government.