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The justices of the US supreme court – even its conservatives – have traditionally valued their institution’s own standing. John Roberts, the current US chief justice, has always been praised – even by liberals – as a staunch advocate of the court’s image as a neutral arbiter. For decades, Americans believed the court soared above the fray of partisan contestation.
In Donald Trump’s second term, the supreme court’s conservative supermajority has seized the opportunity to empower the nation’s chief executive. In response, public approval of the court has collapsed. The question is what it means for liberals to catch up to this new reality of a court that willingly tanks its own legitimacy. Eager to realize cherished goals of assigning power to the president and arrogating as much for itself, the conservative justices seemingly no longer care what the public or the legal community think of the court’s actions. Too often, though, liberals are responding with nostalgia for a court that cares about its high standing. There is a much better option: to grasp the opportunity to set right the supreme court’s role in US democracy.
Attention to the body’s legitimacy surged in the decades after the extraordinary discussion on the topic in Planned Parenthood of Southeastern Pennsylvania v Casey – the 1992 case that famously preserved the abortion rights minted in Roe v Wade despite recent conservative additions to the court. “The Court’s power lies in its legitimacy,” former justices Anthony Kennedy, Sandra Day O’Connor and David Souter explained in their joint opinion, “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”. The fact of popular acceptance of the institution’s role was itself a constitutional and legal concern.
Compared to the prior quarter-century, when they angled for just one justice (often Kennedy) to swing to their side, it was already clear as Trump’s first term ended how much was going to change with Amy Coney Barrett’s conservative substitution for Ruth Bader Ginsburg. Yet liberal justices generally proceeded as if their conservative peers would continue to take their own institution’s legitimacy seriously. They focused on warning conservatives against further eroding it. The dissent in Dobbs v Jackson Women’s Health Organization, which removed the federal right to abortion, is a classic example. The liberal justices lionized Kennedy and other conservatives for refusing to overturn Roe v Wade out of the need they cited in Casey to maintain the supreme court’s image.
That was then. In Trump’s second term, the court has ceded to him near total control over federal spending, even as the president is now openly threatening to withhold funds from “blue” states and projects not aligned with administrative “priorities”. Authorized by the court to engage in racial profiling, masked federal agents continue to descend upon “Democrat-run” cities, subjecting Latinos and now Somalians to ongoing abuse.
Most recently, the court hinted at its plan to declare most, if not all “independent” agencies unconstitutional, allowing Trump to fire members of the Federal Trade Commission and the National Labor Relations Board – though chief justice Roberts did suggest that the Federal Reserve might be different, drawing sighs from legal commentators (and sighs of relief from investors). The conservative justices appear wholly unbothered by the howls that the court is no more than a partisan institution, turning their destructive attention next to what remains of the Voting Rights Act.
Yet with the conservative justices shattering the supreme court’s nonpartisan image during Trump’s second term, liberals are not adjusting much. The liberal justices – Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor – have become much more aggressive in their dissents. But they disagree with one another about how far to concede that their conservative colleagues have given up any concern for institutional legitimacy. Encouragingly, Jackson pivoted to “warning the public that the boat is sinking” – as journalist Jodi Kantor put it in a much-noticed reported piece. Jackson’s fellow liberals, though, did not follow her in this regard, worrying her strategy of pulling the “fire alarm” was “diluting” their collective “impact”.
Similarly, many liberal lawyers have focused their criticism on the manner in which the supreme court has advanced its noxious agenda – issuing major rulings via the “shadow” docket, without full-dress lawyering, and leaving out reasoning in support of its decisions.
What appears to matter for such respectful institutionalists, most prominently liberal professor Stephen Vladeck, is that the errant, reactionary justices rationalize their disastrous rulings. But aside from the fact that few Americans read their opinions in the first place, the objection presupposes that a more enlightened despotism ought to be the goal – that the justices trashing the respect Americans once had for them merely need to explain themselves, instead of giving up their power to inflict so much ongoing harm.
Some liberals worry that concluding the supreme court is beyond redemption is too close to “nihilism” about the constitution, or even about law itself. In the aftermath of Trump’s reelection, professor Kate Shaw remarked: “I don’t think abandoning the constitution in the course of abandoning institutions is the right way forward or is something that we can survive.” Vladeck cautioned similarly against “doomerism”, warning the “rule of law” in the United States might “struggle to survive” the “emergence of any kind of popular consensus that law increasingly doesn’t matter”.
Such qualms suggest some can’t imagine an alternative to a legitimate supreme court even once the institution itself has abandoned that role. Much like in the early 20th century, Americans today are responding to a series of institutional failures with an extended period of constitutional rethinking. Tracing many of those failures to the undemocratic features of our written constitution – the electoral college and the Senate, most notably – reformers are proposing creative solutions or workarounds that might move us in the direction of an actual democracy.
Similarly, progressives are increasingly converging on the idea of both expanding and “disempowering” federal courts. Attentive to the reality that the supreme court especially is not and rarely has been their friend, left-leaning advocates are finding ways to empower ordinary people, trading the hollow hope of judicial power for the promise of popular rule.
To label as “nihilists” those sketching an alternate, more democratic future is, in other words, not only mistaken but outright bizarre. Rather than adhere to the same institutionalist strategies that helped our current crisis, reformers must insist on remaking institutions like the US supreme court so that Americans don’t have to suffer future decades of oligarchy-facilitating rule that makes a parody of the democracy they were promised.
In Trump’s second term, the Republican-appointed majority on the supreme court has brought their institution to the brink of illegitimacy. Far from pulling it back from the edge, our goal has to be to push it off.
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Ryan Doerfler and Samuel Moyn teach law at Harvard and Yale
