Hubris on the High Court Is Leading to a Legitimacy Problem By Paul Rosenzweig

Hubris on the High Court Is Leading to a Legitimacy Problem

By Paul Rosenzweig — Read time: 11 minutes

Hubris on the High Court Is Leading to a Legitimacy Problem

Conservative justices have abandoned their commitment to neutral jurisprudence for the sake of ideology

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Justice Samuel Alito considers it deeply unfair that the Supreme Court is losing legitimacy in the public’s eye. He told The Wall Street Journal recently: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”

Indeed, it does. It crosses the line into reality. The simple fact is that Americans increasingly mistrust the court. According to a recent Gallup poll, fewer than half of the Americans surveyed had “a great deal” or “a fair amount” of trust in the judiciary. This is a remarkable 15-point drop over the last two years ago. It’s the poorest showing for the judicial branch in the history of Gallup polling.

Perhaps worse yet, Justice Alito suggests that this is the result of substantive disagreement with the court’s decisions (in particular the abortion decision in Dobbs earlier this year). Chief Justice John Roberts made a similar statement at a conference for judges in Colorado Springs this summer: “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

With great respect to the two jurists, they are misdiagnosing the cause of the problem. The American people are not throwing a petulant tantrum over a single case. There are several deeper, more systemic, reasons for the declining respect for the court.

Politicizing Judicial Appointments

What makes a court legitimate? Without getting too metaphysical, there are three factors that almost everyone can agree justifiably contribute to the perception of the court’s legitimacy.

The first, which is manifestly outside the justices’ control, is the appearance (if not the reality) of independence from the political process. The politicization of nominations challenges the image of the court’s neutrality. To be fair, nominations have always been political. But there can be little doubt that the politicization has taken a step-function increase in recent years.

Senator Mitch McConnell denied a hearing to Merrick Garland, President Barak Obama’s choice to replace Justice Antonin Scalia after his sudden demise in 2016 because, McConnell insisted, an election was coming up and the new president should get to decide. However, he rushed through a hearing and confirmation for Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg—even though an election was similarly coming up. He might have acted lawfully but his actions smacked of the raw exercise of power. They gave the impression that court members are nothing more than political pawns of the party with momentary control of the Senate. And that, in turn, paints the court itself as little more than a super-legislature.

In 2006, wrote a book about the “Confirmation Wars” bedeviling Congress, recounting the long history of political conflict over judicial appointments. Since then, the miasma of partisanship has only gotten worse. Such partisan machinations in the Senate undermine the famous rebuke to then-President Donald Trump by Chief Justice Roberts that the courts are not filled with Obama judges or Trump judges, but merely judges.

But such partisanship in appointing judges would not, I believe, by itself have created a legitimacy problem for the court if the court had not behaved in a way to diminish its own reputation. However, two major trends that the court itself is responsible for have been major contributors: failing to articulate the reasons for its decisions and reducing the importance of the doctrine of stare decisis.

The Shadow Docket Sleight of Hand

In defending the court, Justice Barrett recently adverted to its defining characteristic—that it explains the reasoning behind its decisions. The court lacks any overt enforcement authority. So its ability to influence (and thus attain social acceptability) is intimately tied to the persuasiveness of its reasoning. The most reviled decisions in the court’s history (like the fugitive slave case, Dred Scott, and the Japanese internment case, Korematsu) reveal in their texts the very source of their ignominy—they lack a convincing rationale and the power of persuasion. In the long run, the court’s success is linked directly to the words it writes—its only stock in trade.

Offering in-depth consideration also enhances the image of thoughtful decision-making. In the normal course of events, litigants have the opportunity to fully develop their arguments and then to make their case, in person, before the court, answering any questions the justices might have. The process, though somewhat time-consuming, contributes significantly to the appearance of regularity on the part of the court.

But if the court embraces an abbreviated process and then fails to even attempt to articulate the reasoning for its decisions, how can it then expect to enhance its reputation? Yet that is what it has done. As has been documented, since 2017, there has been an increase in the frequency with which the Supreme Court intervenes in lower court proceedings on an emergency basis without the benefit of a full briefing schedule or oral arguments—the so called shadow docket. Even more concerning is the fact that many of these decisions are issued without any explanation at all. If persuasive reasoning (even in controversial 5-4 decisions) tends to insulate the court from the appearance of politicization, then the absence of any attempt to provide their reasoning (especially in controversial 5-4 cases) makes the justices look like voting ciphers, registering their positions in a “yay” or “nay” manner that is little different from the one used in Congress when passing legislations.

Staring Down Stare Decisis

Even more relevant from the standpoint of the court’s legitimacy is its respect—or lack thereof—for stare decisis—the doctrine that later court decisions should respect the decisions of earlier courts and not overturn them without good justification. This court’s rejection of the nearly 50-year-old Roe v. Wade precedent in Dobbs is a paradigmatic example of a court disregarding the commands of stare decisis and substituting its own judgment for that of an earlier era.

Of course, stare decisis is not an inexorable command. If it were, the country would still be mired in its segregated past. It should be clear to everyone that not all of the court’s prior decisions are worthy of respect. Some errors should be corrected, no matter how old.

Now, it is true that stare decisis can become an obstacle to correcting the court’s past errors. Still, adherence to it signals a respect for the judicial process by individual justices. It shows that they understand that sometimes it is better for the cause of justice that they “live with” an earlier decision—even one they consider wrong—instead of correcting it. Why would that be?

Citizens have ordered their lives around the earlier rule. They have settled expectations and often unalterable plans. So changing the law increases the potential for social disruption.

That’s often a compelling argument, but in many cases it is insufficient. After all, there are transition costs with every change of law (whether by the courts or by the legislature). If avoiding transition costs were of paramount importance, we would never change the law. And that, manifestly, is impossible. Laws can, and indeed must change with the times.

But fidelity to stare decisis enhances the court’s legitimacy in two distinct but interrelated ways:

One, it assures the public that the law is different from politics by insulating changes in the law from changes in personnel. In the political sphere, policies change as party control shifts. That is both to be expected and, often, welcomed.

In the judicial branch, we expect something different. Legal interpretation garners public respect and support principally to the extent that it appears to be the application of neutral principles. That is why Chief Justice Roberts’ famous characterization of judges as calling “balls and strikes” resonated so well with the public. We all know, of course, that the strike zone changes depending upon which umpire is behind the plate (see, for example, the fans’ views of Angel Hernandez). But we want our system of law to aspire to mitigating and minimizing that difference as much as possible.

Dobbsian Hubris

Two, when changes in the court’s personnel lead directly to changes in the law, the appearance of the court as a neutral arbiter is significantly eroded. There is no reason to doubt that the justices appointed by the Trump administration came by their legal views honestly—in other words, they weren’t simply embracing them to get appointed to the court or for some other crass motivation. But it is equally the case that no reasonable observer can doubt that the precise reason they were appointed was to achieve the result in Dobbs. The overturning of Roe is the endpoint of a concerted 50-year project by those who felt the original decision was in error. That the justices’ beliefs are sincere cannot obscure the fact that the overturning of Roe was the end result of a political project.

Stare decisis is doctrinally intended to combat the politicization of results and thereby enhance the perception of law and the court as neutral arbiters. When it so transparently fails, the resulting loss of judicial prestige cannot be surprising.

But all of this does not fully capture the vital concerns behind the stare decisis doctrine. If the opinions of the justices on the court currently are entitled to a presumption of intellectual honesty, aren’t the opinions of those justices who issued the original ruling? One critical part of the doctrine of stare decisis is a respect for the opinion of one’s judicial predecessors and a realization that, even though one may think they were wrong, their errors are not (except in rare-edge cases) so out of bounds intellectually as to be undeserving of judicial acceptance.

One cardinal virtue that enhances judicial legitimacy is humility—recognition by the court that it is exercising the great power at its disposal with great responsibility and circumspection. That requires jurists to acknowledge the possibility that their own heartfelt views might be mistaken and therefore they should show restraint. It ought to count for something that dozens of justices, most with equally good motives and of equal intelligence, have reached the opposite conclusion from the one they espouse.

In other words, stare decisis increases legitimacy by admitting the possibility that earlier judgments of the court may be correct, even though the current group of justices thinks they were not. The current court, however, has not followed that path.

Doubting Thomas

Justice Clarence Thomas’ concurring opinion in Dobbs is the veritable embodiment of judicial hubris in its disregard for stare decisis. Casting aside the doctrine whose roots go back over a hundred years—and the opinions of jurists before him—he opined that he would throw overboard all of the jurisprudential developments that protect sexual intimacy. In his view, not just abortion but contraception and gay marriage are all beyond the scope of constitutional protections (as Timothy Sandefur noted in a previous piece at The UnPopulist). It takes a jurist of remarkable self-confidence to so blithely assert that he, alone, of all those who came before him, truly understands what the Founders intended.

Even those who think that Thomas has a persuasive argument should recoil at this stunning lack of humility—his belief that he has insight into constitutional imperatives and that this permits him to impose that judgment on society. Is it any wonder that the public increasingly sees such claims to unilateral power, unchecked by reason or history, as illicit?

The best indicator of the court’s legitimacy problem, however, comes from Justice Brett Kavanaugh’s Dobbs concurrence, which can only be read as a plaintive plea for a “good one time only” pass from the public. Recognizing the raw exercise of power inherent in the court’s majority opinion, he rushed to assure readers that the rule it creates is unique to the abortion context. Trust me, he pleaded, gay marriage is not at risk.

Perhaps as a practical matter he is correct. Without his vote, other privacy rights are safe, at least for now. But if we take the court seriously in its analysis, we cannot take Justice Kavanaugh’s concurrence as anything other than special pleading. After all, if the test for recognizing an unenumerated right is whether it is “deeply rooted in the Nation’s history,” as Alito argued in the Dobbs ruling, then gay marriage, for example, is on far thinner footing than abortion. At least Justice Thomas’ view has the virtue of intellectual consistency. By arguing for an exception for abortion, Justice Kavanaugh is rather transparently trying to reclaim legitimacy in a self-contradictory way. The fiat-like nature of his argument is the very antithesis of legitimate reasoning.

Justice Elena Kagan was right when she recently noted: “The very worst moments [in the court’s history] have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions. The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process ... If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”

One can only hope that Justice Kagan’s commitment to this principle is not situational. If, having lost in Dobbs, she recanted her commitment to stare decisis that would even further erode the court’s standing with the public.

Strikingly, Justice Kagan’s view used to be the conservative position. The principles of the Federalist Society, where I have been a proud member since 1983, state: “[I]t is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” Justice Scalia, the hero of conservative originalists, was an ardent defender of stare decisis on pragmatic grounds. He said: “In its undiluted form, at least, [originalism] is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis—so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong.”

Justice Scalia was no fan of Roe so it is not impossible that, had he been alive, he would have joined the court’s other conservatives to overrule it, repudiating his avowed commitment to stare decisis. That would have only made the conservatives on the bench look even more hypocritical.

Indeed, even if conservative justices had not made the condemnation of activist judges who ignore precedent their intellectual project, their contempt for stare decisis principles right now would have been troubling enough. But when they appear to do a total volte-face from their own judicial philosophy, how is the perception that they are acting politically to advance their own causes to be avoided?

That the court’s legitimacy is waning should come as no surprise. Contrary to Justice Alito’s desire, legitimacy cannot be commanded—it must be earned. And he can’t earn it by accusing Americans of bad faith rather than reexamining his—and his conservative jurists’—own recent record of hubris.

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