Annenberg Public Policy Center survey: Only 39% of U.S. adults approve of how the Supreme Court is handling its job, while 53% disapprove. Over half (53%) have little or no trust in the Supreme Court to operate in the best interests of the American people, up 22 percentage points since 2019. (Oct. 11.)
Gallup Poll: "Confidence in U.S. Supreme Court Sinks to Historic Low...25% of Americans have confidence in Supreme Court, down from 36% in 2021" (June 23.)
The late summer exchange between Chief Justice John Roberts and associate Justice Elena Kagan on the impact of last Term's decisions reminds us of the central issue for the third branch: legitimacy. For many, including Justice Kagan, the issue is especially acute after the last Term's decisions. The current Term, which opened October 2, poses similar risks.
The judiciary runs on faith. So judges explain their reasons, seeking not so much to persuade - that's the lawyers' job - but to demonstrate they have decided in a principled way. That is, the decision isn't arbitrary or the result of idiosyncratic predilections. The principles are not, exactly, about being right or wrong, but rather conforming to a body of law ascertainable outside the judge's head. By the same token, it is not enough that a court decision is right (if it is) - it has to show it is right. This is much like judicial ethics where a judge's participation must be seen to be proper, where a key test is whether a judge's impartiality might be questioned by a reasonable observer.
That binding 'body of law' is increasingly flexible as we proceed up the judicial hierarchy. For trial judges, despite the wide discretion they have in some areas, there is almost none on legal matters. For courts of appeal, where most law is made and revised, there is more. Supreme courts, of course, have the widest latitude, especially on constitutional issues. But even there we expect consistency: there is still a body of law, called precedent.
Consistency is deeply rooted in our understanding of principled law: it's built into notions of res judicata (same result in a second case on the same claim), judicial estoppel (you can't ask a court to adopt a reason and then later argue against it), as well as stare decisis (precedent governs). There are classically only two principles which allow a breach of consistency: (1) new facts and (2) the invocation of more fundamental law.
For example an examination of new evidence of legislative intent, including new enactments, might show that an old interpretation was wrong. Or judges might change things if an old interpretation was based on a practical view of a law's impact, and it turns out it doesn't have that impact. E.g., Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 531 (2013) (finding "Nearly 50 years later, things have changed dramatically" in the area of discrimination in voting). For judges following original constitutional intent, perhaps new evidence of that intent is unearthed: in a case interpreting the Second Amendment, we might find out that beliefs of the eighteenth century definitions on "arms" and "bear" were wrong, or outweighed by contrasting definitions. Compare e.g., D.C. v. Heller, 554 U.S. 570, 58 (2008).
The other classic principle for changing settled law is that more fundamental law is invoked. A reading of a statute is upset by a constitutional provision; a city ordinance is preempted by state law; a past practice is eviscerated by a treaty.
This is all routine. The trouble comes when these principles don't apply; when a constitutional reading is replaced with another constitutional reading on the basis that the old one was just wrong. The court's opinion in Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022) for example disagreed with precedent's understanding of "fundamental rights," contributing to the current widespread discussion of the court's legitimacy. One of the central responses from the Dobbs majority was to note that this has happened before - sort of invoking precedent - when Plessy v. Ferguson's separate but equal doctrine was overruled by Brown v. Board of Education, 347 U.S. 483, 491 (1954). Dobbs, 142 S. Ct. at 2237. The Constitution meant one thing before Brown, and another afterwards. And who can argue against Brown?
But Brown was an extraordinary case, and its invocation by Dobbs begs the question whether Dobbs, too, is such an extraordinary case. Brown is extraordinary like Marbury v. Madison, 5 U.S. 137 (1803), and perhaps Griswold v. Connecticut, 381 U.S. 479 (1965). Perhaps there are a few others. The reader will recall Marbury established the Court's role as the final arbiter of the Constitution - a view not universally shared at the time - and Griswold's role in establishing the right to marital privacy on which was built so much privacy-related caselaw. These cases stand entirely apart from the routine reevaluation of precedent; we might call them epochal. These cases changed the very foundation of the Court's relationship with other parts of government, and in Brown and Griswold, what it meant to be a citizen of this nation. These cases risked the Court's legitimacy, gambling that the country would eventually come to endorse the holding. The outcomes could have been otherwise: Congress might have ignored the Court after Marbury. Perhaps the President would have done nothing to enforce Brown; perhaps the resistance of the "Southern Manifesto" led by Senators James Eastland and Barry Byrd, and Virginia Governor Thomas Stanley might have carried the day.
In addition to whatever legal erudition they might have exhibited, these epochal decisions required a wise, one might say judicious, forecast of where the country was going, capturing the trajectory of past hopes and future possibility. The Court's opinions had to be seen as embodying not just plausible constitutional theory - we presumably get that in every case - but an accurate read on the direction of the nation. Optics mattered.
This is why Chief Justice Roberts is probably wrong to suggest, as he did on September 9 at the Tenth Circuit Bench Bar Conference, that following Dobbs people might disagree with the majority (as they might in any case), but ought not to question the court's legitimacy. He said, "But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court." That's usually true, but not with epochal decisions. For apparently the first time, the Court has gambled that this nation finds itself on the way towards a reduction in federal constitutional rights. The Court in effect forecasts a devolution of power to the state legislatures as the vehicles of democracy, which assumes that those legislatures fairly represent the people. (One might then look forward to corresponding decisions ensuring enfranchisement.)
This sort of gamble requires a Court in tune with the nation, not because the Court should adhere to popular will, but because at this level of decision-making - beyond fundamental law and ordinary constitutional analysis - the Court is redefining what it means to be a person and a citizen. It is predicting our future.
It's a gamble. For the Court - and for us.