Defending the Supreme Court’s Legitimacy

By Brian J. Paul

Sunday, August 23, 2026

 

In the last few months, we’ve watched as a U.S. senator has reintroduced a bill with ten cosponsors to restructure the Supreme Court, the House Minority Leader has called a Court majority “illegitimate,” and the president has attacked the very justices he appointed for ruling against him. Meanwhile, two justices appeared before the House to ask for millions in extra security funding; one of them told of how she has had to explain to her children what a bulletproof vest is and why she is forced to wear one. In view of these events, it’s worth taking a moment to remember why the Court still deserves our confidence — and our defense.

 

The Founders did not create the federal judiciary as an afterthought — they made it an independent branch precisely because they anticipated moments like this one, when politically unpopular rulings would tempt the other branches to retaliate. Alexander Hamilton, one of the principal advocates of the Constitution, understood that the judiciary “is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.” Lifetime tenure and salary protection under Article III of the Constitution exist for this very reason: to allow judges to decide cases on the law, not on which political faction controls Congress or the White House. An independent judiciary was never designed to be popular in real time; it was designed to be a check that operates regardless of public sentiment. The current moment — a Court ruling against a sitting president’s signature tariff and birthright citizenship policies, with some of his own appointees joining the majority in those cases — is Article III working exactly as designed, not evidence that something is broken. The same can be said for what might be considered conservative-coded rulings: for example, the decision prohibiting racial gerrymandering from this past term and, even more controversially, the 2022 decision overruling Roe v. Wade.

 

More than two centuries ago, in the canonical decision of Marbury v. Madison, the Supreme Court established that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is” — a principle that has served as one of the pillars of American constitutional government ever since. Without judicial review, the courts have no meaningful way to check the other branches. Many of the Court’s most highly charged rulings are thus the direct descendants of Marbury. In the tariffs decision, the majority grounded its holding in the relevant statutory text and Article I’s assignment of the taxing power to Congress. In the recent ruling striking down limits on the president’s authority to remove officers of the Federal Trade Commission, the majority grounded its holding in Article II’s Vesting and Take Care clauses. Both are textbook exercises of the same power of judicial review that Hamilton first claimed in Federalist No. 78 and that Chief Justice John Marshall made law in Marbury; they tell a coordinate branch it exceeded a textual limit fixed by the Constitution. That a ruling happens to cut against either party is irrelevant to its legitimacy; the first part of Marbury itself involved a ruling against the incoming administration.

 

The Court’s legitimacy comes from how it decides, not what it decides. Reasoned opinions; adherence to text, structure, and history; transparent voting records; and public dissent are the procedural guarantees that make a ruling worthy of precedential force. If legitimacy depended on outcomes pleasing a particular faction, no independent judiciary could exist at all. The whole point of having an independent court is for it to sometimes rule against whoever happens to hold power in the moment without fear or favor. After all, for every winner in a Supreme Court case, there must be a loser.

 

President Trump’s response to the tariff ruling — calling the decision “deeply disappointing,” saying he was “ashamed” of the justices who ruled against him, and calling them “a disgrace to our nation” (even “disloyal to our Constitution”) while praising by name the justices who ruled his way — is a case study in treating judicial legitimacy as outcome-contingent. That kind of rhetoric, aimed at justices for ruling against the president who appointed three of them, sends a corrosive message: that judicial fidelity should run to the appointing president rather than to the law. This is the opposite of what the judicial oath requires: to “administer justice without respect to persons.”

 

On the legislative side, Senator Sheldon Whitehouse (D., R.I.) reintroduced a bill proposing 18-year terms and a new justice seated every two years, framed explicitly around restoring “trust” in a court he and his cosponsors describe as facing a “legitimacy crisis.” Whatever one thinks of term limits as policy, restructuring the Court’s composition in response to disfavored rulings normalizes the idea that judicial independence is negotiable whenever it becomes inconvenient.

 

Once the judiciary’s authority is treated as contingent on winning, no ruling — for anyone, on any side — can ever be regarded as truly legitimate. Congress does hold constitutional authority to set the size of the Court; it has changed the number of justices several times before, ultimately settling at nine in 1869. But the last time there was a concerted effort to alter the Court’s composition, now nearly 90 years ago, the Senate overwhelmingly rejected it. In a scathing report, the Senate Judiciary Committee recognized FDR’s court-packing proposal for what it was: a gambit designed “to make this Government one of men rather than one of law. . . .” So “utterly dangerous” was the bill, the committee openly wished “its parallel [would] never again be presented to the free representatives of the free people of America.” Alas.

 

Criticizing a specific ruling — arguing it was wrongly decided, or that the dissent had the better of the argument — is healthy, normal, and part of what we do every day as engaged citizens. Robust critique of judicial reasoning strengthens the system, which itself is adversarial by design. Delegitimizing the institution that issues the ruling — attacking justices personally, threatening to pack or restructure the Court because a preferred position lost, or declaring the Court’s authority illegitimate as a matter of principle — undermines the institutional trust necessary for any ruling to be enforceable. The current environment all but erases this line. A president calling justices a “disgrace” for ruling against him, and senators reviving a structural-reform bill explicitly timed to public approval polling, both move from “we disagree with this outcome” to “this institution’s authority itself is suspect.” As Hamilton wrote, the Court has “neither FORCE nor WILL, but merely judgment.” If even the authority to render a valid judgment is in question, the Court has nothing, and Americans will be the worse for it. Rights without a judiciary free to declare when they have been violated aren’t worth the parchment they’re printed on.

 

The Supreme Court does not need our political leaders to agree with every decision it hands down — it needs them to defend the process that makes those decisions binding at all. When a losing side is a president or a caucus of senators today, it will be a different president and a different Congress tomorrow. If we allow “I disagree with this ruling” to collapse into “this Court is illegitimate,” we are rhetorically dismantling the very forum in which those interests can be vindicated when those in power fail them.

 

Although attacks on the Court are nothing new, the nature of the attacks has become more radical. When several justices feel compelled to ask the solicitor general whether the president considers himself bound by Court rulings — as they did during an oral argument last year — something is terribly amiss. Fortunately, the solicitor general said yes, but today’s yes can easily become tomorrow’s no if all you really care about is whether the bottom line is, by your lights, “correct.” Hamilton was right in 1788 and he is right now: “All possible care” must be taken to enable the Court to defend itself against the attacks of the other branches. To Hamilton, that meant adopting a constitution that provides for an independent judiciary. To elected officeholders, it should mean even more: preserving, protecting, and defending the independent judiciary, in both word and deed. A bulletproof vest is a miserable substitute for responsible discourse.