Its popularity is not.
There is a puzzling line of argument emerging in the aftermath of the battle over Brett Kavanaugh. Now that the balance of power in the Supreme Court is swinging towards originalism, there is grave concern over the Court’s alleged “legitimacy.” Even though each person on the Court was nominated and confirmed through entirely constitutional processes, there is now a “cloud” because of entirely unproven allegations against two justices. Even though there was nothing at all unconstitutional about the Senate’s refusal to consent to Merrick Garland’s nomination, there’s a further “cloud” because of an allegedly “stolen” seat.
Not one of the three branches of government has violated the Constitution. Each of them has fulfilled its constitutional role. Yet now we hear dark warnings that the Court is damaging itself beyond repair.
Those warnings are wrong. Those warnings depend on a fundamental misunderstanding about the operation of the law in 21st-century America. Those warnings also depend on selective amnesia about the operation of the law. Because, let’s not forget, when the Supreme Court has issued unpopular progressive rulings that have overturned democratically enacted statutes or disrupted social norms, in progressive eyes the Court was never more legitimate. It was an intellectual and moral elite, operating at the vanguard of social justice.
This morning on “The Daily,” the New York Times popular podcast, the host, Michael Barbaro, and his guest, Times Supreme Court reporter Adam Liptak, pondered the legitimacy question at length. Liptak in particular emphasized the fragility of the Court’s power. Liptak referred to Andrew Jackson’s famous disagreements with the Supreme Court, a history that is far more complex than most now remember, to emphasize the importance of voluntary compliance to the Court’s authority.
But the America of Jackson’s two terms was fundamentally different from the America of today. The federal government was a fraction of its current size and reach, the balance of power between the states and national government was a matter of live debate (the nullification crisis started in Jackson’s first term), and the Civil War Amendments hadn’t yet placed American civil liberties beyond the reach of state and local governments.
In 1832, if the Supreme Court issued orders against state authorities, states not only had the practical power to defy the ruling, but the federal government had limited (and debatable) power to enforce the Court’s decree. Now, defying the Court carries with it more than mere political risks. A well-developed body of law and a comprehensive law-enforcement apparatus means that court orders carry with them the implicit promise of prison for any person who subjectively deems any decree “illegitimate.”
In other words, for the Court to lose its authority, layers upon layers of federal authority would have to break down, with multiple authorities choosing open defiance over compliance. Is it possible? Theoretically. Likely? Not at all.
Moreover, many of the Court’s most contentious orders involve upholding state authority. There is no risk of state defiance when the state itself is seeking vindication in court. Let’s take the most contentious ruling the Court could foreseeably issue — an order striking down Roe. There would likely be street demonstrations. Think pieces would decry the ruling as tainted by the number of men on the Court or the past accusations against any of its members. Millions of Americans would believe a decision reversing Roe was every bit as illegitimate as pro-life Americans view Roe itself.
And none of that anguish would matter, at least not in the short term.
You see, a decision reversing Roe would immediately restore state power. Street protests in New York wouldn’t matter one bit to the governor of Mississippi, tasked with enforcing the laws of his state. Fury in California would protect the right of abortion on the West Coast. It would be irrelevant to the state legislature in Tennessee.
Warnings about the Court’s legitimacy represent wishful thinking far more than they do a coherent, real-world critique about the power of the Court. The key word when debating the Court isn’t “legitimacy,” it’s “authority.” The battle over Kavanaugh has done nothing to diminish the very real authority of the Court. In fact, the battle was so intense because of the Court’s authority.
There is no question that America faces a crisis of confidence in its institutions. Yet Congress’s abysmal approval ratings don’t mean that its new tax rates don’t take effect. The president’s low polling numbers don’t mean that the military will ignore orders to, for example, launch air strikes against the Assad regime. Similarly, progressive fury at a conservative majority will not mean that its rulings won’t reshape American law.
For generations, American conservatives and conservative American governments have complied with Supreme Court rulings they believed — with very good reason — to be legally absurd and morally monstrous. The fabrication of a right to abortion is one of the most illegitimate governmental actions in American history. But it was a decision backed by the authority of the Court, an authority buttressed by the power of the federal state.
In the years to come, we’ll hear more about “clouds.” We’ll have more arguments about legitimacy. But absent a constitutional crisis so severe that it makes our present troubles look like the quaint squabbles of a placid past, there is one word that will absolutely apply to the rulings of the Roberts Court. That word is “law.”