Volume 35

Legitimizing the ‘Illegitimate’: How the Supreme Court Can Restore its Legitimacy in the Public Eye

by Mo Kahn

Over the course of the 2020 presidential campaign, particularly after the passing of Justice Ruth Bader Ginsberg, the term “court-packing” became a household phrase and a talking point amongst Republicans and Democrats alike. While Republican senators jumped on the threats of their Democratic counterparts to “pack the court,” Democrats, in turn, charged the Republican controlled Senate of “court-packing”—in reference to the swift confirmation process of Justice Amy Coney Barrett. Yet Justice Barrett’s confirmation was not the lone transgression in the eyes of the Democratic party. It came on the heels of Justice Neil Gorsuch’s appointment to fill the late Justice Antonin Scalia’s vacant seat—a seat that many considered to be stolen from Judge Merrick Garland of the Court of Appeals for the D.C. Circuit—and Justice Brett Kavanaugh’s contentious confirmation, amid the accusations of sexual misconduct by Dr. Christine Blasey Ford. These contentious moments of constitutional hardball4provided the backdrop for the alleged illegitimacy of today’s Supreme Court.

But can a court, even one made up of politically driven nominations, be considered illegitimate if its rulings are inconsistent with the partisan tilt of its justices? A study conducted by Brandon Bartels and Christopher Johnston found that while the Court has held a conservative majority since the late 1960s, the tilt of the Court’s decisions has been, at most, center-right with an overall liberal tilt for what they deem “salient decisions.” This Note examines the features of the Court that uphold its legitimacy. I contend that the Court does not lack legitimacy but rather gives off the perception of illegitimacy by way of the justices embroiling themselves in political controversy either actively or passively. The consequence of this is an American public that has begun to question the legitimacy of the Supreme Court, not so much on a legal level, but on a sociological one. The Court is not broken beyond repair as some members of Congress or the media may believe. The Court is quite salvageable, even in its current composition, but it will require a commitment by its justices to stay out of the limelight, avoid political discourse, and adhere to the proper role of the Court: to exercise its duty of judicial review by interpreting the Constitution without regard for the views or potential backlash of the political branches or the public at large.

Part I of this Note will introduce the notion of legitimacy of the Supreme Court and discuss the factors that support the Court’s legitimacy. Part II will expound on these factors and introduce the idea of ‘platonic legitimacy.’ This section will discuss the Court’s proper role as an institution strictly bound to the Constitution without regard for the will of the political branches, and how the Court fulfills its duty to the American people by exercising this restraint. Part III will discuss contemporary notions of the Court’s role and will explain how ‘platonic legitimacy’ reconciles some contemporary criticisms of the Court. Finally, Part IV will introduce factors that detract from the Court’s legitimacy and propose efforts to mitigate or eliminate those elements’ influence on the Court’s operation. This Note will consider the Court’s interaction with the public and other political branches, as well as how the Court’s response and acquiescence to these pressures necessarily detracts from its legitimacy.

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