While Supreme Court decisions are legitimately subject to debate, there is nothing “illegitimate” about the Court or its decisions. Critics who say otherwise know better. Their real concern is that the current Court majority takes a more rigorous approach to interpreting the Constitution than past majorities, and one less likely to produce policy results the critics favor.
Criticism of the Supreme Court from left-leaning politicians, pundits, and academics has ramped up in recent years as the Court became increasingly “conservative” and reached more decisions disfavored by liberals. The Court’s decisions are, of course, fair game for substantive debate. However, many critics go well beyond disagreement and insist that there is something “illegitimate” about the Court. They claim that it needs a “reckoning” in order to “repair” its alleged shortcomings through court-packing or other “reforms.” Attacks on the legitimacy of the Court reached a crescendo with the issuance of Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade. (See, e.g., here, here, and here.) Under heavy pressure from Democrats, President Biden joined in, trashing the Court as “out of control.”
In fact, there is nothing remotely illegitimate about the Supreme Court. Both political parties have violated norms and turned the judicial confirmation process into a hyper-partisan farce. The makeup of the Court reflects, in part, political maneuvering by both parties. (Republicans infamously ignored the Garland nomination, enabling Justice Gorsuch’s appointment. Justices Kavanaugh and Barrett would not be on the Court without Senate Democrats’ frivolous and strategically foolish filibuster of the Gorsuch nomination.) However, all members of the Court were duly appointed and confirmed in accordance with the Constitution and all applicable rules. It’s actually remarkable that today’s shameful process still manages to produce high-quality Justices.
Most of the Court’s cases deal with controversial issues that present plausible arguments on both sides. That’s why they reach the Supreme Court. One can certainly maintain that the Court got it wrong, even egregiously wrong, in any given case. But that is a far cry from asserting that a decision is “illegitimate,” as do many critics of Dobbs. If being wrong was enough to make a decision illegitimate, Roe would be a likelier candidate than Dobbs. Roe was always dubious as a matter of constitutional law; its legal reasoning (or lack thereof) has been widely criticized across the ideological spectrum ever since the decision was issued. Subsequent judicial efforts to salvage it relied almost exclusively on stare decisis and pragmatic considerations rather than its legal merits.
Roe was also the more “activist” decision. In an article published shortly before Roe was decided, liberal pundit Linda Greenhouse, who now describes abortion as a right “anchored in the Constitution,” called the notion of a constitutional right to abortion “fantastic, illusory” and noted: “The Constitution is searched in vain for any mention of it.” Former Justice Ginsburg criticized Roe for short-circuiting legislative efforts to address abortion issues. Dobbs essentially returned these issues to democratic processes.
Unsurprisingly, the critics never manage to explain exactly what about the Court or its decisions they find “illegitimate.” This is because they know full well that their claims of illegitimacy are nothing but hyperbole. What’s really eating at them is angst over a profound but perfectly legitimate shift in the jurisprudence of the current Court majority versus the majorities that prevailed for so long.
Most Justices during the Warren Court era carrying over into the Burger Court years, Republican and Democratic appointees alike, took a much more free-wheeling approach to constitutional (and statutory) interpretation than today’s majority. They produced decisions that aligned with their sense of contemporary societal needs and values but gave less attention to the supporting legal rationales. The Warren Court issued a series of precedents (including Roe) based not on the language or history of the Constitution but on “penumbras, formed by emanations” flowing from it.
By contrast, today’s majority employs interpretive methodologies such as “originalism” and “textualism” that focus on the language of the relevant constitutional (or statutory) provisions and how their meaning is best understood using historical background and well established principles governing the interpretation of legal text. These methodologies are not panaceas and leave plenty of room for disagreement in specific cases. However, they embody concepts that enhance analytic rigor, and if properly applied, impose some guardrails on subjective judicial discretion.
The majority and dissenting opinions in Dobbs illustrate these contrasting judicial approaches. The majority relies heavily on textual and historical analysis in concluding that the Constitution does not to contain a right to abortion. The dissent by the Court’s three “liberal” Justices takes a broader approach. It asserts that the framers of the Constitution “defined rights in general terms, to permit future evolution in their scope and meaning” thereby inviting the courts to “appl[y] them in new ways, responsive to new societal understandings and conditions.” Accordingly, the dissent puts great weight on the practical consequences and policy ramifications of overruling Roe.
The fact that different Justices take such different approaches to judging does not mean that they are “illegitimate” or mere “politicians in robes.” Rather, both approaches reflect their adherents’ sincere views as to the appropriate role of judges. Cynical attacks on the legitimacy of the Court, its decisions, and even individual Justices (see here and here) serve only to breed more distrust in our institutions. Most Americans are not yet buying the false claim that the Court is illegitimate. However, the unrelenting attacks, magnified by media echo chambers, take their toll. Gallup reports that public confidence in the Court is declining, although the Court still earns considerably more trust than its critics in Congress and the media.
Those who oppose the direction of the Court should shift their frustrations from cynical, baseless rants over its legitimacy to more productive outlets. For one thing, they should look more to legislatures and rely less on the courts to advance their policy preferences.
They might also rethink their view of the Constitution as a malleable document whose meaning evolves to conform to new societal mores and values. This is a fraught time for such a viewpoint. Rights can contract as well as expand if redefined by reference to contemporary mores. Academics and increasingly others on the left are pushing back hard against traditional understandings of key constitutional rights—including freedom of speech, due process, and equal protection of the laws. Liberal judges may follow suit if they see this as an evolution justifying changes to the Constitution’s meaning.