What would a post-legitimate Supreme Court look like?
Scenarios for Constitutional confusion
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President Joe Biden announced his Supreme Court pick last week. It looks as if Judge Ketanji Brown Jackson will be confirmed on a near party-line vote and seated after the current term ends in the summer (you can predict the vote in our forecasting tournament here).
But there is a bigger question, in my opinion, hanging over the Supreme Court than who replaces Justice Breyer.
What is happening to the legitimacy of the Court and what happens if it loses it?
Undefined legitimacy
Articles about the Court now regularly mention threats to its legitimacy or the justices defending it.
According to Ruth Marcus writing at the Washington Post last year:
The least dangerous branch begins its 2021 term at a most perilous time — perilous not just for the country but for the Supreme Court itself.
The threat is to the court’s legitimacy, the source of its authority. The existence of the threat has manifested itself in the remarkable fact that three sitting justices — Stephen G. Breyer, Amy Coney Barrett and Clarence Thomas — have recently felt the need to assert that the justices are not, in Barrett’s tart words, “a bunch of partisan hacks.” Chiming in, Justice Samuel A. Alito Jr. on Thursday warned against “unprecedented efforts to intimidate the court or damage it as an independent institution.”…
This systemic and entrenched disconnect between public opinion and the judicial philosophy of the court’s majority creates a problem when it comes to assuring that the court’s decisions are accepted and followed. As Breyer points out in his new book, the court has no independent authority to enforce its rulings; that depends on public acceptance. He praises the country’s reaction to Bush v. Gore, the 5-to-4 ruling in which the court — over Breyer’s dissent — effectively awarded the presidency to George W. Bush.
What none of those articles ever describe, however, is what would happen if the Court did lose its legitimacy. It’s taken for granted that the Court being illegitimate would be bad (which most people would agree with). But how do we know we’re in a post-legitimate SCOTUS world?
It’s not as if the Supreme Court is a journalist, whose loss of legitimacy would lead to firing, or an organization, where they might bring in new management to clean house. A Court seen as illegitimate by the public would still exist, would still rule on cases, and would still have the same justices serving for life.
What would happen to an institution that was not respected but still part of our Constitutional structure?
Post-legitimacy thought experiment
As a way to explore this question, I have created three scenarios for what we might see in a world after the Supreme Court has lost its legitimacy. I want to stress, this is not a forecast. Hopefully we don’t ever get into this position. But the job of a risk analyst is to consider unfortunate events, so here it is for the Supreme Court.
We begin in 2030. The Supreme Court is down to seven members. Two justices passed away while the Senate and White House were controlled by different parties and the continued divided government means that they have not been replaced.
Scandals have engulfed some of the remaining justices, as they were discovered to have adjudicated on cases where there were clear conflicts of interest.
To cap it off, many of their rulings have been found to have contained factual errors and their oral arguments regularly show a body that is uncomfortable dealing with quantitative evidence.
Washington and a majority of the public now sees the Court as what Justice Breyer said it wasn’t, full of “junior varsity politicians,” and their actions are regularly mocked on late night talk shows. It’s clear that their rulings on policy matters are observed, but not believed to be the result of anything other than a barely respected, partisan process.
So what happens now?
Scenario 1: Nothing
The baseline scenario should be that, despite a perceived lack of legitimacy, nothing happens.
This may seem odd. A seven-person court with little public approval does not seem like a stable status quo. However, Washington tends to adapt to changes and turn them into the new normal.
The best example of this is the filibuster.
As Adam Jentleson, former Deputy Chief of Staff for Senate Majority Leader Harry Reid, describes in his book Kill Switch, the filibuster was a rare occurrence for most of the 20th century. It was in the 2000s, and particularly in 2009 when Democrats controlled the White House and both chambers of Congress, that the filibuster began to be used routinely.
But rather than being described as an aberration from the traditional way the Senate operated, Washington conventional wisdom soon expanded to the need to get 60 votes in the Senate for legislation to pass. What had been an oddity became the expected.
We could certainly imagine at the end of the decade cable news talking heads declaring that, of course, the Senate never confirms a justice when the opposing party holds the White House, and that, of course, justices are partisan actors. That’s just the way it is and there’s no impetus to do anything about it. In this scenario, the Supreme Court rules, its rulings are followed but not respected, and this is assumed to continue indefinitely.
Scenario 2: Clipping their Wings
With the Supreme Court now seen in a diminished light, in this scenario Congress now regularly passes laws that contain provisions that the legislation may not be reviewed by the Supreme Court or can only be overturned by a supermajority of the Court.
We also see the White House and executive agencies ignoring Court decisions. While they have never officially said that they are not bound by the rulings, they use delaying tactics and obfuscate as much as they can so that they can say that they are in compliance with the judicial branch without changing policy.
These may seem like drastic actions that threaten the Court’s position and the rule of law. But, in fact, both have happened before.
Precedents for congressional action are detailed in this law article. The White House is currently arguing that a lower court exceeded its authority on immigration policy. And one does not need to look far in state and local governments to see agencies dragging their feet when mandated to act by a court.
This scenario would not see a major reform to the Court, but the executive and legislative branches emboldened to push back against it and chip away at its power.
Scenario 3: Structural reform
The final scenario would see Congress pass a law changing the composition of the court. This might be an expansion of its members, term limits, or any of the variety of reforms currently being floated.
What matters here is not necessarily the nature of the reform, but that a majority of Congress and the President are willing to pass legislation against the Court. The Supreme Court, in whatever makeup it has afterwards, would be seen as an institution that had been constrained by the other two branches. Its actions afterwards would be less likely to overturn policies supported by the executive or legislative, knowing that it had been dropped in the checks-and-balances pecking order and that it could be reformed again.
What does this all mean?
These scenarios are not necessarily going to come true. But they illustrate a key point.
Amid all the speculation about the Court’s legitimacy, there is no magic dial hanging above the judges’ chambers that tells them how legitimate they are on a given day. In a hypothetical extreme in which the Court is widely perceived as failing in its role in the political system, we can imagine everything from nothing happening to major structural reforms.
Ultimately, what matters for the future of the Court is not the Court itself, but what Congress and the White House do. If they seek to diminish the power of the Court, and believe that public opinion would support their actions, they can do so.
FDR’s court packing attempt was stopped not because the Court acted against him, but because public opinion and Congress opposed it (and in part because a justice switched to support New Deal programs). When Lincoln ignored the Court’s ruling on habeas corpus during the Civil War, there was no such popular backlash and he maintained his position.
In seeking to predict the future of the supreme Court, if the issue of legitimacy rises in importance, then the place to look for signs is not the court itself, but across the street and further up Pennsylvania Ave.