The Left’s Attacks on the Court’s ‘Legitimacy’ Have Stopped Making Sense

By Noah Rothman

Monday, July 10, 2023

 

It was said time and again in the wake of the Supreme Court’s Dobbs decision that the Court had sacrificed its “legitimacy” by overturning the popular precedents of Roe and Casey.

 

Those who posed as the most concerned about the Court’s “legitimacy” retailed the idea that the institution’s failure to defer to public opinion was de facto evidence of its ideological corruption. This “deeply unpopular, society-changing ruling” was only a symptom of how the “institution’s credibility and legitimacy has suffered so greatly,” wrote MSNBC’s Steve Benen.” Vox’s Ian Millhiser appeared to agree. “The Dobbs decision is the culmination of a decades-long effort by Republicans to capture the Supreme Court and use it,” he wrote, “not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.” The cause of the Court’s “unpopularity is no secret,” the New York Times editorial board opined. “Over the past several years, the court has been transformed into a judicial arm of the Republican Party.” As a result, “the court’s legitimacy has been squandered in the service of partisan victories.”

 

Perhaps in an ideal world, the Dobbs decision wouldn’t have “undermined popular support” for the Court, as Washington University professor James Gibson’s white paper on the subject posited. But it did. And his theory of the case is hard to argue against. “Prior to 2020 — believe it or not — liberals won nearly half of the time (and lost half of the time),” he wrote. “Since 2020, however, a determined and emboldened majority on the court wants nothing but conservative decisions.” When “liberals rarely get what they want from the court,” Gibson continued, they have little reason to back the institution.

 

The Court’s left-wing critics insist their defamation campaign targeting the bench’s conservative justices is informed by high principle, but this parochial explanation for their crusade is more convincing. And Gibson’s proposition can now be tested. Insofar as those who insist the Court is hopelessly biased toward the GOP are unpersuaded when it renders verdicts that cut against the Republican Party’s interests, we now have a ruling that is broadly popular but nonetheless still illegitimate.

 

An Economist/YouGov poll of American adults taken after the Court’s ruling in Students for Fair Admissions Inc. vs. President and Fellows of Harvard College found that 59 percent of respondents support the ruling, which bans colleges that accept federal funding from considering “an applicant’s race when making decisions on admissions.” That figure includes a majority of women and a plurality of black, Hispanic, and younger respondents between the ages of 18 and 29 — demographics that make up the base of that aggrieved center-Left voting block that is so frustrated with the Court’s recent decisions.

 

These numbers are consistent with polling on affirmative action generally. This summer, Pew Research Center polling prior to the Court’s verdict found that a majority disapproves of using race and ethnicity in the admissions process. By 49 percent to 20 percent, most Americans said affirmative action made the college-admissions process less rather than more “fair.” A year ago, another Pew poll found that 74 percent of respondents believed “race or ethnicity” should not be a factor college administrators consider when selecting admittees. That included 59 percent of African Americans, 68 percent of Hispanics, and even 62 percent of self-identified Democrats.

 

So, will this have any effect on how the public views the Court — which a recent Quinnipiac University poll found has seen its reputation suffer because voters believe the body is “mainly motivated by politics” rather than “by the law”? Probably not, if only because those who are leading the crusade against the Court are keen to revise their line of attack to preserve the public’s distaste for its findings.

 

“One of the longer-term consequences of this ruling, coming on the heels of a series of other decisions by this Court going back to 2022, is public agitation about the Court,” said Harvard University historian Jill Lepore in an interview with PBS last week. She alleged that the majority’s determination that affirmative action violates the 14th Amendment’s proscriptions against racial discrimination is “baffling to people.” The decision, coming after a series of other rulings that “were at variance with public opinion” and whose “legal logic is a little bit illegible,” would “erode confidence in the Court,” Lepore concluded.

 

You apparently need a Ph.D. to understand why a constitutional amendment blocking publicly funded ventures from engaging in negative racial discrimination also invalidates initiatives designed to produce outcomes based on positive racial discrimination. At the very least, Lepore’s logic dispenses with the notion that the unpopularity of the Court’s verdicts is solely responsible for the body’s declining favorability ratings. Sometimes, the substance of those rulings, even when they might be popular, also contributes to the specter of illegitimacy allegedly haunting the Court. The only common thread appears to be that the Court is illegitimate when it isn’t doing what the Left wants.

 

This is a useful admission. It demonstrates the malleability of the attacks on the Court’s legitimacy, which are increasingly exposed by those making them as a conclusion in pursuit of a rationale. The Court’s “legitimacy” is imperiled when it takes up a “fake” case in the effort to determine that the state cannot compel private speech — a dubious charge that has little bearing on Colorado’s efforts to enforce what it assumed was its prerogative. Its legitimacy is threatened when conservative justices decline to recuse themselves from certain cases on the flimsiest of pretexts, but not when liberal justices refuse to recognize obvious conflicts of interest or opine on cases from which they’ve recused themselves. The Court is illegitimate because it is supposedly accumulating power for itself, even when it disaggregates political authority across the whole Madisonian scheme. It is illegitimate when it “dominates policymaking” thereby “undermining democracy” because it insists that only Congress — not the president, not executive agencies, and not the judiciary — has the authority to write new law.

 

Those who are waging a war on the Court’s legitimacy will use any weapon at hand to prosecute their case, even at the expense of consistency. But the kitchen-sink strategy muddies their arguments. Maybe the hyper-partisan left sees no contradiction in arguing that the Court is illegitimate when it renders popular verdicts as much as unpopular ones, that conservative justices must adhere to standards of conduct from which liberal justices are exempt, and that insisting that Congress should do its job constitutes a power-grab. But average voters can be forgiven if they are confused.