The Legitimacy of the Court

By Michael Brendan Dougherty

Wednesday, July 31, 2024

 

Fred Bauer points out that almost all the declining trust in the Supreme Court as an institution is coming from progressives.

 

Regarding all the talk about the “crisis” of trust in the Supreme Court: The drop in trust in the Court in recent years is driven almost entirely by Democrats. Independents are basically where thy were on the Court a decade ago. pic.twitter.com/dpiKFWOBaH

 

— Fred Bauer (@fredbauerblog) July 31, 2024

 

I want to say very loudly, I predicted this. On January 3, 2018, I wrote:

 

So I’ve started to worry that if the Court soon consolidates to the left or the right, partisans on the losing end of that bargain will swiftly lose faith in democracy itself. . . . I can foresee both parties’ reaching for extraordinary measures if they felt that the Supreme Court had become the cat’s-paw of one party. The obvious bag of tricks includes states’ trying to nullify laws. Or one party could try to pack the Supreme Court with new justices to rectify or reverse the consolidation.

 

I’ve been thinking more on the problem since it became obvious that the court was consolidating on the right.

 

What is really going on here is that there are two operative and competing theories of legitimacy for the Court. Conservatives root their case in the idea that the Court should be what it has been since Marbury v. Madison, a player that decides whether legislative or executive action fits within the powers delimited by the written Constitution, as the Founders intended it. Progressives, although they rarely articulate it this way, took on board a new theory of legitimacy during the Warren Court era: namely, that the Supreme Court was legitimate insofar as it protected essential human rights, as defined by progressives, from the depredations of elected majorities. It’s not how our Founders designed the Court — and it would have horrified John Adams in particular — but it is a theory that will make deep moral sense to progressives about what anti-majoritarian branches of the government are supposed to do in any system.