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Has the Supreme Court lost its legitimacy?

The good news is that looking back at the court’s often tumultuous history, today’s partisan split is not unprecedented.
Illustration of an eroding photograph of the Supreme Court.
Brett Kavanaugh’s confirmation convinced many people that the Supreme Court's last shred of judicial impartiality has vanished.Doug Chayka / for NBC News

Cynics, including myself, know that a so-called judicial activist is any judge or justice who votes to strike down a law we support, or uphold one we oppose. Both liberals and conservatives are equally guilty of accusing judges of judicial overreach and usurpation of legislative or executive powers.

Two very recent decisions offer countering examples: In December, federal Judge Reed O’Connor in Texas — an unabashed conservative — struck down the entire Affordable Care Act as unconstitutional to howls of liberal outrage; University of Michigan law professor Nicholas Bagley denounced O'Connor's opinion as “raw judicial activism.” Four days later, Judge Emmet Sullivan of the D.C. federal court — the nemesis of Michael Flynnblocked enforcement of President Donald Trump’s order denying asylum protection to migrants who claim they are fleeing gang violence or domestic abuse; a White House statement blasted Sullivan’s decision as “the latest example of judicial activism.” It obviously matters whose partisan ox is being gored.

No institution can long survive the gradual erosion and crumbling of its bedrock foundation, the public’s perception of its legitimacy.

No institution can long survive the gradual erosion and crumbling of its bedrock foundation, the public’s perception of its legitimacy. A court seen as overly partisan and result-driven would erode that legitimacy. This past October, Justice Elena Kagan, a reliable “liberal” vote on the bench, made this plea at a Princeton conference: “All of us... need to realize how precious the Court’s legitimacy is. It’s an incredibly important thing for the Court to guard this reputation of being impartial, being neutral and not simply being an extension of a polarizing process.”


Kagan’s remarks occurred in the midst of the Senate confirmation hearings for Judge Brett Kavanaugh, during which Democrats and Republicans attacked each other in vituperative terms. Kavanaugh himself, fearing his confirmation in jeopardy after the sexual abuse allegations of Dr. Christine Blasey Ford, hit back with an intemperate counter-allegation of a Democratic plot to keep him off the Supreme Court bench.

Kavanaugh’s razor-thin confirmation convinced many people that, indeed, the last shred of judicial impartiality has vanished. But does that reality actually undermine its legitimacy? In my view as a Supreme Court historian, it does not. The test of any institution’s legitimacy is not public approval of its decisions, which varies over time. Rather, what matters is whether the public continues to believe the court has the authority to make decisions — and whether those decisions are obeyed by both the debate’s winners and losers.

In this regard, with the notable exception of calls to resist court orders in school desegregation cases in the 1950s and 1960s by demagogic governors like Orval Faubus and George Wallace — both of whom eventually backed down in the face of federal enforcement power — the legitimacy of the institution has never been seriously at risk.

Public support, however grudging, of the court’s legitimacy does not, however, translate into approval of its decisions, which shifts with political winds and partisan views. For example, a Gallup poll this past July showed approval of the court at 53 percent, the highest since 2009, with 41 percent disapproval. But the partisan split was significant, with 72 percent of Republicans saying they approved, an amazing jump from 26 percent a year earlier. This latter poll, of course, came after President Donald Trump and the Repulican-led Senate had successfully confirmed Justice Neil Gorsuch and had nominated Kavanaugh, fulfilling an important campaign promise to his right-wing base. In contrast, only 38 percent of Democrats currently approve of the court, down from 75 percent in 2009, after President Barack Obama nominee Sonia Sotomayor was confirmed.

The public seems to have accepted the fact that presidents most often place their political supporters on the court, a practice that has happened throughout history.

The public seems to have accepted the fact that presidents most often place their political supporters on the court, a practice that has happened throughout history. For example, all ten of President George Washington’s nominees were members of his Federalist party, provoking the only (so far) impeachment of a justice, Samuel Chase in 1805, for denouncing Jeffersonian “mobocracy” from the bench. Thomas Jefferson’s Democratic-Republican allies did not hide their partisan motives for this impeachment; their leader, William Giles of Virginia, reportedly boasted to then-Senator John Quincy Adams: “We want your offices, for the purpose of giving them to men who will fill them better.”

The Jeffersonians had a majority in the Senate, but nonetheless had second thoughts about setting a precedent for purely political impeachments — that sword had two blades. Chase was acquitted.

Similarly, all but one of President Franklin Roosevelt’s nominees were Democrats, one of whom, Justice William O. Douglas, became the target of an impeachment drive in 1970. A Republican representative, Gerald Ford, led that charge, based largely on Douglas’ off-the-bench writings, which included articles in magazines that featured (gasp!) nude photographs. Ford’s effort failed, however, as did a campaign led by segregationists to impeach Chief Justice Earl Warren in the 1950s.

Impeachment talk, of course, is swirling around Washington, with Trump as the target. But it is also being aimed at the Supreme Court. Even before his confirmation, Kavanaugh faced impeachment calls by a handful of liberal House Democrats, notably Rep. Ted Lieu of bright-blue California. Lieu said the House Judiciary Committee “should immediately start an investigation into Judge Kavanaugh to see if he should be impeached.” Now that the Democrats have regained control the House in January, pressure will likely only build for pursuing such an impeachment, although as long as the GOP controls the Senate such an effort would almost certainly fail.

But likely or not, an impeachment vote would do little to quell partisan anger. Should Americans be worried that such bitterness might further erode the foundations of the court? Chief Justice John Roberts has tried to reassure those who questioned his own impartiality. “Judges and justices are like umpires,” he said during his 2005 confirmation hearing. “My job is to call balls and strikes, and not to pitch or bat.” Presumably, justices should agree on the calls they make, since they are all experienced jurists and supposedly unswayed by partisan attachments; in fact, under this presumption, all decisions should be unanimous, since they all see the ball approach the plate. But that’s rarely true in contentious cases, as the number of five-to-four decisions keeps growing.

Roberts’ claim was amusingly answered by umpire Jim Evans, a 28-year-veteran of Major League Baseball. “Unlike a judge,” Evans wrote in response, “an ump can’t deliberate over days and weeks, reading briefs over and over, debating with law clerks or fellow judges. Umps don’t have that luxury. As with judging, the tough calls are hardly ever obvious. Balls and strikes are elusive creatures.” Although somewhat tongue-in-cheek, Evans makes a valid point. Every baseball player and batting coach knows that different umpires have different strike zones; some are wider, favoring pitchers, and some narrower, giving batters an edge. The same goes for justices: some have a wider view of constitutional provisions, others narrower.

President Donald Trump does not seem to share the views of Roberts. His position on selecting judges and justices is frankly partisan. “We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump assured a group of evangelical Christian leaders before the 2016 election, referring to the powerful conservative group of lawyers and judges that essentially functions as the GOP’s legal firm. “If it’s my judges,” Trump promised, “you know how they’re gonna decide, and if it’s [Hillary Clinton’s] judges, you also know how they’re gonna decide.” Intended or not, Trump’s words about “my judges” are another rebuke to Roberts.

President Donald Trump does not seem to share the views of Roberts. His position on selecting judges and justices is frankly partisan.

Looking back at the Supreme Court’s often tumultuous history, it is clear that today’s partisan split over issues that divide the country — both among the justices and the public — is neither recent nor unprecedented. Bitter judicial debates over slavery in the nineteenth century, and FDR’s economic recovery plans during the Great Depression, threatened — but fortunately did not break — the Supreme Court’s bedrock legitimacy.

However, in the wake of the nakedly partisan outcome of Justice Kavanaugh’s confirmation, and Trump’s relentless and insulting attacks on “so-called” judges whose decisions he decries, it cannot be said with certainty that the federal courts will weather this Category 5 pounding. Will the public continue to accept the court’s legitimacy as the ultimate umpire of our society’s divisive issues, while often loudly booing their calls? Or will our judges, like those in countries like Poland and Hungary, become simply compliant tools of the governing regime?

Depending on the uncertainties of judicial health and retirement, the next few years should better answer these crucial questions. In the meantime, eat your Cracker Jacks and feel free, while you still can, to exercise your constitutional right to boo the umps.