Bench Memos

A Citizen’s Warning about the Legitimacy of Justice Breyer

Ed Whelan pointed out many of the problems with Lincoln Caplan’s New York Times piece yesterday, in which Caplan elaborated on Justice Breyer’s veiled suggestions that the Roberts Court has been undermining the legitimacy of the of the Supreme Court. I will add that Caplan’s “Judge’s Warning About the Legitimacy of the Supreme Court” was based less on evidence of public perception of the Court than on Justice Breyer’s own evident disappointment that he is now more often in the minority than any justice, save only the liberal John Paul Stevens, who retired this spring.

In fact, a Gallup poll released last week shows that the public perception of the Court has been incredibly consistent for the last forty years, with periodic peaks and valleys but nearly always as the decidedly favored branch of government. While approval of Congress just hit an all-time low of 36 percent, and approval of the president and the executive branch is below 50 percent, the judicial branch remains at 66 percent approval. And this is despite the decided effort over the past nine months by Democrats from the president on down to tar the Roberts Court as activist. While the judicial branch has declined in public confidence since its peak of 80 percent during the Clinton impeachment process, its numbers have remained remarkably consistent since the 1970s — hardly reason to raise concerns about loss of legitimacy.

If Caplan and the Times are so concerned about legitimacy — both the Court’s and their own — they should take the time to fact-check the opinions of their favored sources before echoing them. The Court has not lost its legitimacy in the eyes of the American people, only in the eyes of Justice Breyer.

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