The Supreme Court’s Declining Legitimacy Amidst Controversial Decisions
July 2022 | Tia Zghaib, Staff Writer/Editor
The Supreme Court of the United States, the “highest court in the land,” is the only branch of the American government that consists entirely of unelected officials. Ironically, the institution that is most responsible for protecting and ensuring justice is, by definition, the least democratic of them all. However, its impact is among the most far-reaching, as it has the ability to make decisions over almost every aspect of American life—from social issues, to elections, to the impeachment of the President. After the 1803 Marbury v. Madison decision, the Supreme Court was able to exercise the ability to strike down any law that it deems unconstitutional, which further expanded its power and ability to check the other branches of government.[1] Today, the Supreme Court consists of six conservative justices and three liberals. Liberal presidents have won the popular vote for nearly the past two decades, yet are the minority on the Court, which exemplifies how distanced it can be from American elections and the public.[2] The Court’s changing dynamic has led to the Supreme Court rolling out a variety of controversial decisions in 2022 that have prompted backlash from both Democrats and Republicans alike.
The Supreme Court’s June 2022 decisions have prompted many critics and legal analysts to describe the Court as becoming more activist, in that it is more willing to launch major decisions and reverse precedents.[3] Beginning with New York State Rifle & Pistol Association v. Bruen, the Court, for the first time, established that Americans have a right to carry handguns outside the home for self-defense purposes, and struck down a New York law that required them to show evidence of a need for self-defense.[4] The Court’s decisions also dealt with vaccine requirements. In National Federation of Independent Business v. Department of Labor, the Court struck down a federal vaccine requirement for employers, dealing yet another blow to Democrats across the country. However, the Court’s decisions have not only targeted liberal policies. In Biden v. Texas, the Court ruled 5-4 that the Biden administration can reverse the Trump-era migration restrictions, which prompted backlash from conservatives nationwide. Perhaps the most controversial decision made by the Court in 2022 was in the case Dobbs v. Jackson Women’s Health Organization, which overturned the decades-old precedents of Roe v. Wade and Planned Parenthood v. Casey, and returned the ability to fully ban abortion for any reason back to the states.[5] This decision sparked protests in cities across the country and led to calls to undermine the Supreme Court decision in any way possible. Therefore, these controversial decisions—that had unpopular aspects among both major parties—have triggered conversations about the Supreme Court’s power, enforceability, and legitimacy.
The Supreme Court’s power is outlined in Article III of the Constitution, but lacks in its ability to enforce its decisions. Rather, the Supreme Court had to build up its power and recognition itself, beginning with the Marshall Court in the 19th century. The Marshall Court emphasized three factors that the Supreme Court had to establish for it to be a legitimate institution: judicial independence, judicial review, and judicial sovereignty.[6] The first was established fairly quickly, as the Supreme Court is separate from the other two branches of government. Judicial review was then established by Marbury v. Madison, but judicial sovereignty was the most difficult and important factor amongst the three. Judicial sovereignty refers to the Court’s ability to have the final say on any issues that it decides and have their decisions obeyed. This judicial sovereignty depends almost entirely on the Court’s legitimacy, not only in the eyes of voters and the public, but also in the eyes of political officials who must respect its decisions.
The instances in which the Supreme Court’s decisions were ignored are extremely rare, but the most infamous was in the 1832 case Worcester v. Georgia, in which the Court tried to protect Native American sovereignty over their land. Then President Andrew Jackson decided to ignore the decision completely, stating “John Marshall has made his decision, now let him enforce it,” leading to the Trail of Tears in which Native Americans were forced to leave their homes and travel thousands of miles away.[7] This instance drew attention to the lack of enforceability of the Supreme Court’s decisions, as their power rests entirely on their legitimacy through the eyes of the public, including government officials. Today, however, the Supreme Court’s decisions are rarely, if ever, ignored by any officials, as they recognize the importance of obeying the Court in order to protect the legitimacy of future decisions that may be favorable to the parties in question. The case of U.S. v. Nixon in 1974 further entrenched that the Court has the final say in all manners and that nobody is above the law, even the President.[8] Therefore, while the Court’s sovereignty is deeply rooted in American history, its legitimacy still plays a major role in its power today and must be considered in times when the Court is taking on a more activist position.
As established, the Supreme Court’s June 2022 decisions have been extremely controversial among members of both major parties, considering they have released groundbreaking opinions on topics from abortion, to the Second Amendment, to immigration, and more. As a result, many who oppose the recent decisions have been asking what can be done to undermine these rulings. Now that it has been established that the consequences of merely ignoring the Court are too great, other avenues of action must be examined. There are two possible ways to undermine decisions made by the Court: court packing and legislation. The first was threatened by President Franklin D. Roosevelt in the New Deal Era, when he threatened to pack the Court with more justices in order to balance the Court with more supporters of the New Deal. As a result of this threat came the famous “switch in time that saved nine” from the West Coast Hotel Co. v. Parrish case, in which the Court began to change their votes and views on the New Deal in order to appease public opinion and save the Court’s operation as a nine-justice panel.[9] Considering that Article III of the Constitution grants Congress the power to expand the number of members on the Court, court packing—or the threat thereof—may be a solution to the Court’s unpopular activism and may be a way to reconnect the Court with democratic elections and the voice of the public.
The second possible solution to undermine the Court’s unpopular decisions is to pass legislation that changes what the Court has jurisdiction over. If Congress were to pass legislation detailing what subjects the Court cannot decide on, or legislation reversing one of the Court’s rulings, then that would overrule a decision that the Court has made. This would be another potential avenue of action, as it would also require federal legislation to pass which would involve the cooperation of both parties and their constituents. Ultimately, there are various ways that the public and government officials can bypass the Court’s most controversial or unpopular decisions without ignoring the Court altogether. However, the Court’s legitimacy remains the biggest factor at stake amidst its activist patterns. As of a poll conducted in December of 2021, Supreme Court Chief Justice John Roberts had the highest public approval of all government officials polled, including President Biden, Vice President Harris, and Dr. Anthony Fauci.[10] His high approval rate came from both parties, signaling the high public opinion of the Supreme Court as a whole. Nonetheless, the public opinion on the Supreme Court is likely much different today due to these controversial decisions that have undermined the interests of both parties. Therefore, it is essential to keep an eye on the public opinion of the Supreme Court while it continues to make these far-reaching decisions, as low public opinion may signal declining legitimacy that is likely fatal to the Court as an institution and the role that it plays in American politics and law.
Sources
“Marbury v. Madison.” (Oyez).
Federal Elections Commission, “2004 Election Results.” (Federal Elections Commission: 2004).
“The Supreme Court’s Judicial Activism Will Deepen Cracks in America.” (The Economist: June 2022).
“New York State Rifle & Pistol Association v. Bruen.” (SCOTUS Blog: June 2022).
Ann E. Marimow, Aadit Tambe, and Adrian Blanco, “How the Supreme Court Ruled in the Major Decisions of 2022.” (Washington Post: June 2022).
McCloskey, Robert, The American Supreme Court. (The University of Chicago Press, 2016).
“Remembering the Time Andrew Jackson Decided to Ignore the Supreme Court In The Name of Georgia’s Right to Cherokee Land.” (Sustain Atlanta: April 2015).
“U.S. v. Nixon” (Oyez).
McBride, Alex, “West Coast Hotel Co. v. Parrish (1937).” (Thirteen: December 2006).
Saad, Lydia, “Justice Roberts Tops Federal Leaders in Americans’ Approval.” (Gallup: December 2021).