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Justices join debate on Supreme Court's legitimacy after abortion ruling

The court faces a decline in popular support, with more contentious cases on the horizon.
Image: John Roberts and Elena Kagan
Chief Justice John Roberts and Justice Elena Kagan attend President Donald Trump's State of the Union address at the Capitol on Feb. 5, 2019. Doug Mills / The New York Times via AP file

The Supreme Court returns to action next month amid a backlash to its contentious ruling that eliminated the constitutional right to abortion, sparking debate even among the justices themselves about whether an institution that relies on the public perception of its legitimacy could be losing the trust of the people.

Liberal Justice Elena Kagan has several times over the summer warned that the court risks being seen as an outcome-oriented political branch of government. Chief Justice John Roberts, one of the court’s six conservatives, pushed back against some of the criticism in a recent public appearance, saying people should not question the court’s legitimacy just because they disagree with its rulings. Fellow liberal Justice Sonia Sotomayor has echoed some of Kagan's sentiments.

The Supreme Court’s authority, uniquely among the three branches of government, rests on how its rulings are received by the people, including elected officials tasked with enforcing the law, because it does not have the power to unilaterally enforce them itself. As Founding Father Alexander Hamilton wrote in 1788 about the role of the judiciary, courts "have neither force nor will, but merely judgment." That makes the public perception of how the Supreme Court operates vitally important.

“The court’s legitimacy comes down to whether the public thinks the court is doing law, not politics,” said Sherif Girgis, a professor at Notre Dame Law School who was a law clerk for conservative Justice Samuel Alito.

It is important that the public think the justices are reaching decisions in good faith based on the law, Girgis said. “It’s bad for the system if the public doesn’t think that’s what they are doing,” he added.

The court’s new term officially begins Oct. 3, with Democratic President Joe Biden’s new appointee, Justice Ketanji Brown Jackson, taking the bench for the first time after having replaced fellow liberal Justice Stephen Breyer, who retired in June. The 6-3 conservative majority remains in place, with the court set to tackle a series of hot-button issues, including whether to end the use of racial preferences in college admissions and two major election-related disputes that could have impacts on the 2024 presidential race.

The justices will return to the bench at a time when they face almost unprecedented scrutiny after the June decision to overturn the landmark 1973 Roe v. Wade ruling, which protected the right to abortion. It was one of a series of rulings that the court decided along ideological lines; others curbed the power of the Environmental Protection Agency to tackle climate change and expanded religious rights.

The court was already rocking from the leak of an unpublished draft of the abortion decision, which led to protests outside justices’ homes and the erection of a security fence around the court building. A man was charged with attempted murder after he was arrested near the home of conservative Justice Brett Kavanaugh in possession of a firearm.

An NBC News poll found that the court’s favorability rating dropped in the wake of the abortion ruling, with more Americans saying they had low confidence than those who said they high confidence in the court for the first time since 2000. There are also signs the ruling has given Democrats a boost heading into the midterm elections in November that will determine control of Congress.

Kagan, who dissented in the abortion decision and other major rulings, has said at public appearances that legitimacy can be undermined in various ways, among them the court’s taking a cavalier approach to long-standing precedent. The three liberal justices in their joint dissent in the abortion case were particularly critical of the majority’s approach to jettisoning Roe v. Wade after almost 50 years.

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as just trying to impose personal preferences on society, irrespective of the law, that’s when there’s a problem,” Kagan, who was appointed by former President Barack Obama, said at an appearance Wednesday in Chicago.

What makes the court legitimate is “doing something that is recognizably law-like, and that’s when a court will build up some reservoir of public confidence and goodwill,” she added.

Sotomayor said at an event in California on Thursday that “there’s going to be some question about the court’s legitimacy” if people think the justices are acting based on politics, according to a Courthouse News Service report.

In his appearance Sept. 9 at a judicial conference in Colorado, Roberts, who was appointed by former President George W. Bush, accepted that people had a right to criticize the court’s rulings while pushing back against the idea that its legitimacy should be questioned.

“So obviously people can say what they want, and they are certainly free to criticize the Supreme Court. And if they want to say the legitimacy is in question, they are free to do so. But I don’t understand the connection between opinions people disagree with and the legitimacy of the court,” he said.

Noting that justices themselves often disagree with the majority’s decisions, he added that “simply because people disagree with an opinion is not a basis for questioning the legitimacy of the court.”

A 'minority-rule component'

The Supreme Court has faced questions about its legitimacy at various points in history, including in 1857, when it issued its notorious Dred Scott ruling, which said that slaves were not citizens and not protected by the Constitution, a decision that helped pave the way for President Abraham Lincoln’s administration and the Civil War. Conversely, in 1954, Southern states resisted enforcing the landmark Brown v. Board of Education ruling, which ended segregation in public schools. In Arkansas, President Dwight Eisenhower ultimately summoned U.S. troops to ensure that Black students could desegregate a high school in Little Rock, illustrating the court's lack of power to enforce its rulings. In a notable clash between the president and the court, President Franklin Delano Roosevelt unsuccessfully sought to expand the number of justices after the court repeatedly struck down elements of his New Deal economic plan.

Even before the recent abortion ruling, progressive activists had been raising the alarm about what they viewed as a court out of step with the nation, with the 6-3 conservative majority made possible only because Republican President Donald Trump was able to fill three vacancies in a single four-year term. One of the vacancies, created by the death of conservative Justice Antonin Scalia in 2016, dated to the Obama administration, and Trump was able to fill it only because the Republican-led Senate refused to take action on Obama’s nominee, Merrick Garland, now the attorney general.

Liberals also point to the fact that Republican presidents have appointed six of the nine justices despite having lost the popular vote in seven of the last eight presidential elections.

“There’s a real minority-rule component to the way the court is constituted that is somewhat unique historically, which affects its legitimacy,” said Carolyn Shapiro, a professor at Chicago-Kent College of Law, who clerked for Breyer.

Under pressure from progressive activists who want to expand the court, Biden last year appointed a commission to study potential changes. The commission, which was not tasked with making recommendations, wrapped up in December with members divided over court expansion while acknowledging it was a contentious idea. The commission was more receptive to imposing term limits so justices would serve fixed terms instead of having lifetime appointments, which could make the court’s composition more reflective of electoral outcomes.

Adam White, a conservative scholar at the American Enterprise Institute who served on the commission, said there are ways for the court to amend its practices now to fend off some of the recent criticism.

White highlighted the court’s increasing reliance on an expedited process dubbed the “shadow docket,” in which cases of significance are decided quickly and without full oral arguments and briefings, as an area the justices could change course on. He added that the justices could also exercise more restraint in deciding which appeals to hear and take more care in what they write in their opinions.

“I think the court needs to think hard about the way it goes about its work,” he said.