In a case in 1832 called Worcester v. Georgia, the Supreme Court ruled that the Cherokee nation was a sovereign entity with rights on its territory that could not be revoked by state governments. President Andrew Jackson, who supported the seizure of local lands, was outraged by the decision of Chief Justice John Marshall, according to reports that “Marshall has made his decision, now let him impose it.”
The literal wording of Jackson’s response is probably apocryphal, but it captures the essence of his administration’s reaction. Authorities continued and escalated the policy of ethnic cleansing blessed by Jackson and the federal government, forcing Cherokees and other tribes to leave their lands in defiance of Worcester’s decision.
The Worcester case illustrates something vital to the Supreme Court: it has power only insofar as people believe it has. From a constitutional point of view, the Court does not have the firm power of the Presidency or Congress. He cannot deploy the army or stop funding for a program. It can order others to take action, but these orders are only valid if other branches and state governments think they must follow them. The strength of the Court depends on its legitimacy – on the widespread belief among both citizens and politicians that obeying its orders is the right and necessary thing.
Senator Elizabeth Warren (D-MA) addressed abortion advocates outside the Supreme Court on May 3. Oliver Contreras / Washington Post via Getty Images
This legitimacy has been slowly eroding in recent years. The unprecedented blockade of Supreme Court nominee President Barack Obama Merrick Garland in 2016, the fierce battle for Brett Cavanaugh’s nomination in 2018, the Republican Party’s blatant disregard for Garland’s 2020 precedent for the appointment of Amy Connie Barrett After the severe death of Judge Ruth Bader Gins, the conservative bias of the Court’s decisions was combined to do considerable damage to the idea that the Court was somehow above politics. As a result, many Americans support radical reforms of the Court: 66 percent support restrictions on the mandate of judges, and 45 percent support the packaging or expansion of the Court.
Judge Samuel Alito’s expired draft opinion, which will overturn Rowe v. Wade if issued, could be another significant blow to the court’s legitimacy. The problem is not just that the majority of Americans will not agree with the decision, although they will almost certainly do so. That is, the process that led to this result has repeatedly exposed the Court as a court of policy by other means.
In this context, overturning what is perhaps the most controversial modern Supreme Court ruling – setting a 50-year precedent with long-standing majority support – will strike differently from previous controversial court rulings. The damage can be severe and lasting, even worse than overt political decisions like Bush v. Gore.
While it may be tempting to rejoice in the collapse of the Court’s legitimacy, given its experience, the Worcester case should give us some pause. In the American system, for better or worse, the court must serve as the final arbiter of political differences. If he lacks the legitimacy to play that role, that sets the stage for a constitutional crisis – especially if former President Donald Trump runs again in 2024.
How overturning Roe would harm the legitimacy of the Court
Political scientists who study the sources of the Court’s legitimacy usually find that it stems from the notion that the Court is not a political body. The idea that judges interpret the law to the best of their ability, rather than simply justifying their political preferences, is fundamental to society’s faith in the institution as a whole.
For decades, this belief has been quite widespread in the American public, allowing the Court to withstand some very controversial decisions.
In 2000, Bush v. Gore, for example, the Court split along transparent party lines to elevate George W. Bush to the presidency, angering almost the entire Democratic Party. But the damage is not permanent: a 2007 study found that “the Court seems to have as much credibility today as it did a decade ago”, without significant divisions by guerrilla affiliation. The only best predictor of faith in the Court was not a party, but the individual’s ideological commitment to the rule of law.
Since then, the American political system has fallen apart. The growing political polarization has forced guerrillas on both sides to look at politics more with zero; the growing distrust in the main institutions, especially on the republican side, contributed to the general decline in confidence in the government.
In the American system, for better or worse, the court must serve as the final arbiter of political differences.
In theory, the Court may have been able to survive these opposing winds of establishment. But since 2016, Republicans have taken a series of steps that make it difficult for anyone to see the Court standing above politics.
When Judge Antonin Scalia died in February 2016, Republican Senate Majority Leader Mitch McConnell shamefully refused to even schedule hearings for Obama’s deputy candidate, current Attorney General Merrick Garland, until after the 2016 election. McConnell’s argument was that no justice should be appointed in the election year, but the rationale was clearly political: Garland was a moderate liberal and would tip the Court from a 5-4 conservative majority to a 5-4 liberal.
Then Donald Trump won the election in 2016, despite the loss of the popular vote and continued to redesign the court on the lines preferred by McConnell.
First, he appointed staunch conservative Neil Gorsuch in court instead of Garland – retaining a 5-4 majority in court. At the time, longtime Republican operative Brett Cavanaugh was confirmed amid a fierce battle over Christine Blaise Ford’s allegations that Cavanaugh had sexually assaulted her, one of the most bitter and polarizing hearings in Supreme Court history.
And when Judge Ginsberg died in September 2020, McConnell and Trump threw Amy Connie Barrett into court before the 2020 vote – giving the Conservatives a 6-3 lead and revealing the alleged principle behind the Garland blockade as guerrilla fabrication. (McConnell’s attempt to square this circle, citing an alleged anti-Senate rule confirming nominations by opposing party presidents in the election years, was absurd.)
By September 2021, the Supreme Court’s approval rating had fallen to 40 percent, the lowest number recorded in more than 20 years of Gallup research. The decline is the biggest among Democrats, but it is also visible among Republicans – who seem to be turning against institutions that wrote big as a result of Trump’s defeat in 2020 and subsequent allegations that the election was rigged against him. Another September Quinnipiac poll gave the Court an even lower approval rating, 37 per cent, the lowest point in the firm’s 2004 poll. A third poll, published in November, found that 61 per cent of Americans believed the court was motivated mainly by politics rather than law.
In an April article, political scientists Miles Armali and Elizabeth Lane showed evidence linking the court’s declining legitimacy to the last few years of guerrilla warfare. With good luck, the authors began researching the effect of the confirmation battles on the legitimacy of the court in the weeks before Ginsberg’s death – allowing them to continue with the same participants immediately after her death. They found that McConnell’s rush to take the Trump-appointed post had eroded Democratic voters’ confidence in the court over various measures without improving it among Republicans.
Since 1989, every Gallup poll on Roe v. Wade has found continued public support to keep the decision in force.
“Our results suggest that the increased politicization of the Senate’s Supreme Court confirmation hearings is detrimental to the court’s legitimacy,” they concluded. “Attitudes towards the judiciary – often marked by their stability – are influenced by the actions of selected branches.
Of course, the court itself did not help. Following Trump’s appointments, the Court’s jurisprudence has swayed to the right. Chief Justice John Roberts, seemingly the only conservative concerned about the Court’s reputation over politics, can no longer join the four Liberals to curb his colleagues’ political ambitions.
This is the context in which Alito Roe’s draft opinion appeared. Much of the concern about the effect of the opinion on legitimacy focuses on the outcome of the project – on how it makes the Supreme Court look like any other institution in Washington. But that’s inside baseball: a much bigger effect on the legitimacy of the court is more likely to come from the decision itself, if it actually becomes law.
A recent paper by Logan Strother and Shana Gadarian, political scientists at Purdue and Syracuse, respectively, argues that the rise of extreme partisanship has changed the Court’s ability to issue conflicting decisions and maintain its legitimacy thereafter. In the current situation, they find that “the disagreement of politics with the decisions of the Supreme Court makes people consider this decision and the court itself as political in nature” – which, as they also show, undermines the basic legitimacy of the Court.
Since 1989, every Gallup poll on Rowe v. Wade has found continued public support to keep the decision in force. In the most recent poll conducted in 2008, supporters outperformed their opponents by 19 percentage points (52 to 33). By 2021, this gap had grown to 26 points (58 to 32). Three other recent polls find even stronger support for …
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