“Supreme Court, dogged by questions of legitimacy, is ready to resume,” The Washington Post headline blares.
“The Supreme Court Seems Awfully Nervous About Its Own Legitimacy,” The New York Times helpfully exclaims.
Not to be outdone, CNN jumps in with, “The Supreme Court is fighting over its own legitimacy.”
And there are approximately 8 million more references to “Supreme Court” and “legitimacy” according to Google.
That sure sounds serious. What in the world is going on?
It’s the start of the new term for the U.S. Supreme Court and there are plenty of interesting cases that will be argued and decided, including 303 Creative, LLC v. Elenis, which involves a Christian graphic artist and website designer fighting for her religious and free speech right to choose which weddings she wants to promote with her business.
And the media, which equated the June Dobbs decision that overturned Roe v. Wade with the end of human rights as we know them, are suddenly posting poll results that show people have the lowest opinion of the high court since such polls originated.
As a concerned Christian, should you be worried?
The short answer is, “Nah.”
In fact, if you understand the game the media are playing, you will not only disregard the hyperbole, but you’ll notice that the high court is doing things correctly, Constitution-wise. And that’s the only thing that matters.
Even the justices themselves are getting involved in the current public debate over the high court’s “legitimacy,” according to Politico.
Left-leaning Justice Elena Kagan, who dissented in the Dobbs decision, told an audience at the Northwestern University School of Law last week, “When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem.”
But Dobbs is the opposite of what Kagan is describing. It was a much-needed course correction to Roe, where a 7-2 majority imposed a decision on America that has been highly criticized for nearly 50 years – even from liberal scholars – because “it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Around the same time, Chief Justice John Roberts spoke to a judicial conference in Colorado about the ginned-up controversy:
“I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” Roberts said. “If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is. … Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”
To boil down the media’s current obsession with the word “legitimacy,” it comes down to the Left’s anger over the Dobbs decision.
It’s really as simple as that.
If the Left – including its champions in the elite media – can’t have their way at the Supreme Court, then they will attempt to cow the justices into submission by using fear of their poll numbers.
And we’ve constantly been told that at least one justice – the Chief Justice, in fact – is indeed concerned over the “prestige and legitimacy” of the court, according to The New York Times in 2020. Roberts told The Atlantic’s Jeffry Rosen in 2007 that “he would make it his highest priority to protect the Court’s institutional legitimacy.”
Roberts may have inadvertently created the opening the media are using at the moment to attempt to influence him and perhaps others on the high court.
So, is there any doubt why the media are playing the “legitimacy” card ahead of the court’s new term?
There’s an important reason why The Washington Post and others are relegated to what is, in essence, a public relations campaign to influence the justices.
Federal judges, including those who sit on the Supreme Court, hold their seats “during good behavior,” according to the Constitution, a phrase which equates to a lifetime appointment, subject to removal only by impeachment. And impeachment has never been interpreted to mean, “Because we don’t agree with a particular judge’s decisions.”
In Federalist 78, written in 1788, Alexander Hamilton explained why the then-proposed U.S. Constitution contained the “good behavior” clause.
“The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government,” Hamilton wrote. “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
In other words, if you can’t fire federal judges because you don’t like their decisions, you can’t intimidate them either. They’re free to make “unpopular” decisions that comport with the text and original understanding of the laws they are interpreting.
In the short term, people may disagree with the court’s decisions. In the longer term, however, correct decisions – even those that overturn longstanding precedents – are accepted because they’re right.
The 1954 racial desegregation case, Brown v. Board of Education, which overturned the high court’s own shameful 1896 “separate but equal” decision, certainly comes to mind in that category. Roe v. Wade, which remained controversial for the almost 50 years it was in effect, does not.
So don’t fall for the notion that there is any crisis of legitimacy at the Supreme Court. As Justice Kagan rightly observed, that only happens when the court substitutes its own preferred policies for those enacted by the political branch. We lived through Roe, which actually fit that description, creating an actual question as to the court’s legitimacy. We’ll live through Obergefell and its imposed redefinition of marriage, which also represented a fanciful interpretation of the Constitution.
But the court these days, thanks to its conservative majority, is doing a fairly decent job of sticking to the Constitution, with perhaps a minor exception or two. The media din you’re hearing concerning the court’s “legitimacy” is simply a feeble gambit to influence the justices to stop doing exactly what they’re supposed to be doing.
Photo from Shutterstock.