The past week has been pretty hard at the Supreme Court for some, and pretty great for others. If you’ve been on the winning side, whether on guns, abortion, prayer or all three, you may take the attitude, “We won, you lost, get over it.” And, perhaps, you would also argue that if the other side was able to stack the deck with its ideological loyalists, they would have done so in a flash and been just as pleased with being winners.
But what about the legitimacy of the Supreme Court?
“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.
As the Least Dangerous Branch, the Supreme Court has always relied on its legitimacy as an impartial arbiter of the law to fulfill its role in our tripartite system of government. Over the past few years, it has been the target of constant attacks on its legitimacy by people like Linda Greenhouse in the Times, who dedicated column after to column for the past half decade to arguing that the Supreme Court was a vast right wing conspiracy. Then again, it’s not like Mitch McConnell didn’t do everything in his power to prove her correct.
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.
There are plenty of excuses and rationalizations for why this happened, who “did it first” and why the other side is worse, but the fact remains that it happened and was wrong, even if they got away with it.
“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.”
But here’s a question that floats above this modern restatement of why the judiciary is least dangerous: Were there any circumstances under which either side would accept losing in this fundamental culture war cases?
The public mindset wasn’t a product of these rulings per se, even if it would have been under different circumstances. The undermining of the integrity of the Supreme Court, of its justices, has been going on for years. And for those who conveniently forget, justices like Gorsuch and Kavanaugh, and to a lesser extent Barrett, were already judges on circuit courts, as Alito was when he was plucked from the Third to take a seat at the Big Bench. Thomas wasn’t, but then he was picked to the fill the Marshall seat, maybe the most cynical appointment ever.
The point is that these weren’t random wild-eyed crazies being held in some secret Federalist Society safehouse, but circuit judges who were known and respected. They didn’t become reviled until their nominations for the Supreme Court, when suddenly qualified judges became right wingnuts and worse.
And before anyone else smugly points this out, it’s not as if Biden hasn’t made it his priority to select judges based on what used to be considered immutable characteristics, or that the group pushing their reliable warriors from the left, Demand Justice, isn’t as flagrant as possible in arguing that their judges will reliably do exactly as the woke demand. At least the Republicans had the courtesy to pretend otherwise. The Demand Justice nuts make no similar pretense.
Would that instill faith in the legitimacy of the Supreme Court, or be little different than what the Republicans stand accused of, gaming their position in the Senate to stack the Court with their partisan hacks? Of course, if the woke weren’t the losers but the winners, they wouldn’t care much about the Supreme Court’s legitimacy, as they’e been setting up for years knowing that the other tribe had the majority and they had to do anything possible to undermine the Court.
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.
There are some of us, naive though we may seem these days, who believe that the Supreme Court would best serve a nation and fulfill its function with justices who were both highly qualified and truly impartial, such that any litigant arguing a case before the Court believed that if done well, soundly reasoned and adequately supported by law and logic, they can win. But then, neither left nor right have any interest in such a justice, as that leaves them exposed to a potential loss. Neither is willing to suffer a loss if they can avoid it by gaming the system and stacking the deck in their favor.
But what about the Supreme Court’s legitimacy? Legitimacy is for losers. Nobody wants to be the loser.
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Beyond the question of whether hand-wringing over “legitimacy” was inevitable is the question of whether factions haven’t always concern trolled about it. It’s a perpetual right wing political talking point to play up the fear of losing our glorious idealized past, and as we have seen the Democrats will play right wing ball as much as anybody.
“Nobody wants to be the loser.”
…and yet somehow they end up being exactly what they ‘don’t want to be’.
PS: Dear Billie,
Good riddance, Motherfucker.
Regards, GD
President Andrew Jackson.
“ The Supreme Court has made its decision, now let them enforce it.”
For those that missed it….
Rep. Maxine Waters, D-Calif.
“The hell with the Supreme Court. We will defy them”
That Jackson quote the left keeps recently trotting out leaves out that the admin wanted to not enforce rights for natives, resulting in the trail of tears.
They also forget that statements like that cut both ways. The solution is for leaders to do what the GOP did and use the system slowly build power to win even if it takes decades.
Otherwise tit for tat never ends.
Someone should point out to Maxine that the states will be enforcing their own laws, including those regarding abortion, and that states like Texas and Alabama will happily comply with the Supreme Court ruling.
When Texas arrests a doctor for taking her advice and ignoring the SC, what does she think will happen? Will Biden invade Texas to rescue them? She’s a moron spouting inanities.
Your larger point is correct. The left is pissed because they wanted to stack the court with their partisans but the right did it better. “I lost so I’m gonna diminish and maybe tear down the institution” is actually very Trumpian. It’s almost as if there’s not a hair’s worth of difference between the parties.
When has Maxine ever not come up with the dumbest and most irrelevant reaction possible? That’s her brand.
Didn’t conservatives “accept losing” on the staggeringly political redefinition of marriage? I don’t recall mobs of people picketing the court, protesting in random locations nationwide or demanding the impeachment of Justices after the ruling in Obergefell.
Can you not see how obtuse this comparison is? One is a previously marginalized group gaining a right others already have and enjoy. The other is all women losing a right to determine bodily autonomy and reproductive freedom that has been relied upon for fifty years.
I see you find equality offensive, even if you don’t protest over it. Are you proud to be a relic of narrow thinking and casual cruelty?
If the Supreme Court ever decides that the right to bear arms only applies when you are in a government regulated militia, we’ll see if the right “accepts losing.”
You understand that at the time that was written the phrase “well regulated” meant “well trained”? Every adult male was part of the “militia” and was expected to show with his personal firearm at any call to muster. The founders considered a standing army anathema, and it was understood to be the primary tool of oppression.
You’re missing his point, LY.
The right has accepted losing for the past 50 years with congress and the courts ignoring or re-interpreting the constitution to “discover” new rights in the “emanations” and “penumbras” while also ignoring rights clearly and specifically enumerated to satisfy the progressive agenda.
I’m not saying everything they’re doing is great or that it isn’t a painful correction but seeing them actually apply the constitution that was written rather than the ones that progressives wish we had is nice.
Ever consider that the possibility that the court that gave us Roe was the illegitimate one? They were the ones creating “rights” out of whole cloth with no basis in the constitution or history to back them.
What part of “you’re missing the point” makes you think missing it harder is the answer?
No biggie. By federal law, everybody (well, every male, but it’s the 21st century so it’s now everybody) is in the militia unless they’re on active military service. Go look it up in the USCs.
Title 10. You can take it from there.
So I’ll take that “loss,” even though I’m not much of a Right person. And then ask where my bazooka is, because Congress is supposed to be responsible for arming the militia as well.
Cue the music guys “If I Had A Rocket Launcher.”
Something we need to understand when we talk about legitimacy is that we mean what is legitimate to the major media and political operatives largely in big cities and the coasts. On my Facebook feed, I see lamentations about Roe from friends, almost all of whom went to top – elite colleges and law schools and now have jobs in law, politics or the media and live on the coasts. The celebrations of Dobbs come from people who went to state schools, community colleges and live away from the major cities. It is as if Christopher Lasch, Matt Taibbi, and Batya Unger Sargon (author of “Bad News”) had scripted the culturally divided reactions.
Dobbs is legally unsound because it overemphasizes history and regulation of medicine at times prior to the modern rights doctrines, before we realized that “germs” – bacteria and viruses cause disease, when the height of medicine was “bleeding” the poor patients, when people believed in humors, before the development of modern biology, before the rejection of creationism as science, before women had the vote, treating the history when slavery was legal and considered part of life as part of the “history”, … in essence before everything we know about the protection of key rights, before modern medicine, before the civil war and the 14th amendment for heaven’s sake.
History is fine, but if one is talking about history before anyone alive today was born, before the relevant amendments were passed, and when medicine was practiced by self described dentists and blood letters, one is elevating “history” over reality. That’s the problem with this opinion. It’s based upon a nonsense view of history – relevant history.
There are times and places where originalism and textualism make sense, but they are only a tool when appropriate and applicable, not a god to pray to.
And even worst, originalism can just as easily be manipulated to arrive at a predetermined outcome as any other legal philosophy in the hands of someone inclined to abuse it.
Andrew Jackson coming back in style among The Woke is a hoot. Maxine Waters will join him in facing portraits on the $20 (which will be the lowest denomination issued by the Federal Reserve).
Justice Thomas had been a judge on the DC Circuit for 16 months when we was nominated to the Supreme Court.
Yeah, we know. That’s not really experience.
I do believe the SCOTUS has lost a great deal of legitimacy. There have been too many 5-4 decisions decided upon ideological lines; far too many reversals of precedents along 5-4 ideological lines. Chief Justice Roberts has recognized this and tried to stem the tide, but has failed. The conservative and evangelical appointees ignore all precedent and reality when making these controversial decisions.
Who is the evangelical on the Supreme Court (past or present)? Asking for a friend.