The Supreme Court unites us. That was the point. In a nation governed by the rule of law under a federal constitution, judicial administration of that constitution could not be left scattershot to 13 state supreme courts, let alone 50. So we established one court, supreme to all the others, singularly capable of unifying our rule of law.
And the Supreme Court divides us. That is unavoidable. A case involves two sides—one wins, one loses. And precisely because the Court was made to decide cases of national consequence, its decisions stir outrage, and have from the start. Marbury v. Madison did in 1803. So did Roe v. Wade in 1973. And the case that reversed Roe in June 2022 did, too.
So when someone leaked an early draft of Dobbs v. Jackson Women’s Health Organization to reporters, the wave of outrage was predictable. Of course people would denounce the opinion, just as others would praise it. Still, some went further. They denounced not just the Court’s reasoning, but the Court itself.
The Court’s “still got this lingering faint halo around it from the Warren Court period,” Representative Jamie Raskin told an MSNBC audience. But by overruling Roe v. Wade, “the Court will have returned to its historic baseline of being a reactionary conservative institution to the far right of everything else at the federal level in the government.”
It was utter condemnation, and Raskin meant it. “For most of our history,” the Court “never did anything for enslaved Americans other than to cement and constitutionalize the system of slavery in the Dred Scott decision and to declare that Americans have no rights that the white man is bound to respect and to declare that the Constitution is indeed a white man’s compact.” And after the Civil War, he continued, “the Court articulated American apartheid in Plessy v. Ferguson, approving Jim Crow arrangements throughout most of the country.”
Sure, the Court eventually corrected its mistake in Brown v. Board of Education, and issued countless other decisions that progressives can applaud, especially in the post-Roe decades. But for Raskin, the last half-century was a mere vacation from the Court’s ugly history—a “brief few-decade period with the Warren Court.”
Just a few months earlier, the same congressman struck a different note about our constitutional institutions. Describing the work of the January 6 Committee on another cable channel, he denounced those who “attack our constitutional system” and thus “fail the basic responsibility of a political party, which is to accept the constitutional structure as it exists.” Inviting “everybody all along the political spectrum from whatever point of view to join us in defending the democracy,” he urged that “there could be no more important work” than “to defend all of our institutions.” Not just Congress, he emphasized, “but the courts, we’ve got to defend,” too—even “the rule of law itself.”
Raskin is hardly alone in this Janus-faced approach to our constitutional institutions. Many who criticize Donald Trump and his fiercest supporters for their utter disregard—contempt, even—for constitutional institutions also heap utter scorn upon the Supreme Court, questioning its very legitimacy and threatening to pack it with extra justices whom the critics expect to deliver more favorable outcomes.
In December, just days after President Biden’s Commission on the Supreme Court of the United States published its final report,1 Senator Elizabeth Warren challenged “the legitimacy of every action the current court takes” and called for the Court to be packed with extra justices. Two years earlier, five of her fellow senators filed a brief in the Supreme Court, in a Second Amendment case, warning the justices not to rule in favor of the New York residents who had sought licenses to transport their licensed handguns outside their homes. “The Supreme Court is not well,” the senators wrote, “and the people know it.” The Court might have to be “restructured,” they added, with the subtlety of Mafia heavies. Nice Court you have here; shame if something happened to it.
These senators have been joined by activists and a small but vocal group of law professors from some of the most prestigious law schools. Harvard professors Laurence Tribe and Nancy Gertner served on President Biden’s commission, and at the conclusion of our work, they published an op-ed challenging “the dubious legitimacy” of justices President Trump appointed and (quoting Justice Sotomayor) suggesting a “‘stench’ of politics hovering over this court’s deliberations.” Minimizing others’ “hand-wringing over the court’s legitimacy,” they concluded that even if Court-packing “would temporarily shake” the Court’s authority, “that risk is worth taking.”
In Congress, Democrats have introduced bills to pack the Court with four additional seats for President Biden to fill, or to impose term limits on all current and future justices. Fortunately, there is no reason to believe that Congress will pass either bill; and in any event, the latter bill would violate the Constitution’s basic grant of life tenure to federal justices, who (absent impeachment) “shall hold their Offices during good Behaviour.”
Such assaults on the Supreme Court are not unprecedented. And the infamous failure of such assaults throughout American history—by Jefferson in 1801, FDR in 1937, and the Birchers in the 1960s—may inspire a sense of complacency among those who do not share the ruinous fever of the activists.
But to shrug off the Court-packing attacks would be a grave mistake. In an era when respect for constitutional institutions seems to recede more and more with every passing year, when attacks on constitutional institutions are becoming all too prevalent on both sides of the political aisle, and when activists on both sides believe that the other’s anti-institutional activists justify one’s own worst excesses, it is important for true friends of our constitutional institutions to make a case for the Court, and to root that case in the basic spirit of republican liberty that informed and inspired our Constitution to begin with.
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Americans take many of our civic traditions for granted, but the peaceful transfer of power from one president to the next, especially when the transfer bridges party lines, still stirs sentiments of gratitude for the first Americans who undertook these responsibilities when the republic still hung in the balance. In the last days of Donald Trump’s refusal to accept Joe Biden’s election, we were reminded of 1800. John Adams’s and Thomas Jefferson’s partisans fought bitterly for the presidency, each warning that the other’s election would bring scandal and ruin; but come Inauguration Day, Adams left town and Jefferson swore his constitutional oath of office, declaring that “we are all Republicans, we are all Federalists.”
It is an inspiring and reassuring story. And it helps us to forget the low, brutal warfare partisans soon began to wage on the federal courts. A month before his inauguration, Congress enacted the Judiciary Act of 1801, which reorganized the federal courts; required the subtraction of the Supreme Court’s next vacant seat; and added 16 new federal judicial positions, almost all of which Adams filled in the waning days of his presidency.
Outraged by the prospect that the “Midnight Judges” would perpetuate a Federalist sense of the Constitution in the courts for years to come, Jefferson and his party responded with a series of measures the ferocity of which has never been equaled. The Judiciary Act of 1802 preserved the Supreme Court’s sixth seat and cancelled the 1801 Act’s reorganization of the lower courts. Furthermore, recognizing that forcing the newly appointed judges out of their newly created seats raised significant constitutional problems—because, again, federal judges have life tenure—Congress suspended the Supreme Court’s operations for a year, to prevent the justices from promptly hearing a constitutional case challenging the 1802 Act itself.
And then Jefferson’s party took aim at the remaining judges themselves. Most ominously, the House impeached Justice Samuel Chase, a vocal Federalist; the Senate tried him, even calling Chief Justice John Marshall as a witness.
How lucky we are that the Senate fell short of the two-thirds supermajority needed to convict him. The failure of the Jeffersonians to remove Justice Chase closed the door on further impeachments, which Federalists plainly could see coming. “I have just received the articles of impeachment against Judge Chase,” Chief Justice Marshall wrote to his brother on April 1, 1804. “They are sufficient to alarm the friends of a pure & of course an independent judiciary.”
One and a quarter centuries later, another president and his partisans declared another war on the Supreme Court. In 1935, the Supreme Court had unanimously ruled against President Roosevelt in three major cases involving the first New Deal’s sweeping changes in the structure of government, and FDR’s attempt to seize control of the independent Federal Trade Commission. These were unconstitutional not just in the eyes of conservative justices, but also Justice Louis Brandeis and the Court’s other progressives.
After his 1936 reelection, President Roosevelt dedicated a fireside chat to criticizing the justices and calling for new legislation to pack the Court. Cataloging his disagreements with the Court’s rulings, FDR asserted that “we have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.” Claiming that a “mandate [was] given us” by the voters, he urged that “we must have Judges who will bring to the Courts a present-day sense of the Constitution,” which would be achieved by adding an extra justice—for him to appoint, of course—for each seated justice age 70 or older. “There is nothing novel or radical about this idea,” he protested, moments after explaining that his plan might enable the appointment of up to six more justices.
This time, Congress itself rejected FDR’s attack on the Court. Though Democrats held majorities in both houses, Democratic leaders stifled it in each. The Senate Judiciary Committee’s final report denounced FDR’s Court-packing plan “as a needless, futile, and utterly dangerous abandonment of constitutional principle,” which “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
Not since then has a president or Congress declared this kind of war on the Supreme Court in response to the justices’ appointments or decisions. But such rhetoric has bubbled up among the Court’s most heated, stewing critics. In the 1960s, after the Supreme Court’s decision in Brown v. Board of Education spurred “massive resistance” among segregationists, the Georgia House of Representatives passed a resolution calling for the impeachment of six justices, and before long the John Birch Society began a national campaign, emblazoned across billboards and signs and buttons: “Save Our Republic! Impeach Earl Warren.”
Years later, after the Supreme Court reaffirmed Roe v. Wade’s right to abortion in 1992, conservatives at First Things magazine responded to Planned Parenthood v. Casey and other recent judicial decisions by questioning the very legitimacy of the Court itself. A special 1996 symposium issue declared that “the Supreme Court itself . . . has raised the alarm about the legitimacy of law in the present regime. . . . The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy.”
But in all of these episodes, and others, we see the forerunners of today’s attacks on the Court, in both their substance and rhetoric. Some criticize the justices, or the process by which the president and Senate appointed them, and declare those justices to be inherently illegitimate. Some criticize particular decisions, declaring them to be so profoundly wrong as to forfeit not just the Court’s legitimacy in that case, or its legitimacy in cases yet to come. Some criticize the broader trajectory of the Court’s jurisprudence, decrying a judicial sense of the Constitution that threatens the “end of democracy” itself. And upon such criticism, they perceive a justification for profound changes to the Court itself—packing it with extra justices more palatable to the critics’ own constitutional taste, or removing the distasteful justices, or simply threatening the Court and thwarting it with massive resistance, hoping that the Court’s own powers will recede.
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Any account of political attacks on the legitimacy of Supreme Court decisions must keep in mind that the Court does, in fact, make profound mistakes. Casey was one such case; there are many others, particularly on the subject of slavery and racial discrimination, abortion, and many matters in which the justices actively or passively affirmed the dehumanization of men, women, and babies deemed outside the law’s protection.
The worst example, both in the substance of the Court’s ruling and in its consequences, was Dred Scott v. Sandford (1857). There the Court rejected not just Scott’s fundamental rights as a human being and as a citizen, but also Congress’s own power to protect his rights through legislation. And in so doing, the Court set the nation on a course for Civil War.
Yet in that moment we also see the best example of a political response. The Court’s brutal misjudgment inspired Abraham Lincoln to the heights of republican political discourse, first in his unsuccessful campaign for the Senate, and then in his successful campaign for the presidency.
Upon swearing his own constitutional oath of office, Lincoln delivered an inaugural address that grappled firmly but thoughtfully with the logic of the Court’s decision, and the logic of the Constitution. After explaining why the Court had been wrong to negate Congress’s power to legislate on slavery, he explained how the American people might respond against the justices.
Far from rejecting the Court’s legitimacy, he stopped short even of rejecting the legitimacy of the Court’s order in Dred Scott’s particular case. He would not “deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit,” and “are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” Perhaps the Court would change its mind in a future case, limiting the “evil effect” of its first decision by not allowing the decision to “become a precedent for other cases.”
But it was not enough to simply await the Court’s change of mind, Lincoln recognized. So he continued:
The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
Here, stripped of the rhetorical excess that the Court’s earlier and subsequent critics displayed, and filled with all the wisdom and subtlety that they lacked, was the crux of the constitutional issue. The Supreme Court is supreme among courts, but no more than that. The American people do have the power—indeed, the responsibility—to question the Court’s decisions; to make clear their disagreements with the Court’s reasoning; and to seek proper means, in proper moments, to rectify the Court’s misjudgments.
For some this year, such a moment was Dobbs’s reversal of Roe. For others, decades earlier, it was Roe and Casey. But for all of us, the challenge is to understand the nature of the Court’s legitimacy, and of the legitimacy of our own criticism of the Court.
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“Do you consider the Supreme Court of the United States to be legitimate or illegitimate?” The Harris Pol posed that question in a survey just days after Dobbs was finally decided. Sixty-three percent of respondents deemed the Court legitimate; 37 percent of them deemed it illegitimate. Among Democrats, the margin was narrower, 54 to 46. A month later, the Harris Poll reported that the Supreme Court had a “net favorable” rating of 14 percent—that is, 50 percent had a favorable view of the Court, 36 percent unfavorable.
Other polls suggest a dimmer view. NBC News, for example, reported in late August that the Court’s favorability was underwater: 36 percent favorable, 42 percent unfavorable, though it did not break down the responses among Republicans and Democrats.
One can only guess what informs a respondent’s “favorable” or “unfavorable” view of the Court. The Harris Poll found that only 25 percent of respondents want the Court itself to set abortion standards, which is the very thing that the Dobbs Court emphatically ceased to do. Perhaps a better sense of the public’s mood is reflected in the Harris Poll’s finding that 69 percent of the respondents agree that Dobbs “created turmoil” for the country.
In any event, the turmoil preceding and following the Dobbs decision contained several lines of attack on the Court’s legitimacy—all of which, again, are echoes of earlier partisans’ own attacks on the Supreme Court.
Some attack the legitimacy of the justices President Trump appointed to the Court. By this theory, Justice Neil Gorsuch illegitimately holds a seat that belongs rightly to Merrick Garland, whose 2016 nomination to succeed Antonin Scalia received the silent treatment from the Senate’s Republican majority.
Such critics also deny the legitimacy of Justice Amy Coney Barrett, who received the Senate’s prompt approval in the weeks leading up to the 2020 presidential election, four years after many of the same senators had cited the upcoming 2016 election as grounds for not acting on Garland’s nomination.
Now, without question, some of the explanations proffered by Republicans of their refusal to consider the Garland nomination in 2016 simply do not square with their explanations of why they were going to vote on Barrett in 2020. So for the critics of both Gorsuch and Barrett, the hypocrisy of politicians nullifies the legitimacy of the justices themselves, and of their judicial opinions. As Senator Warren put it in her December 2021 attack on the Court, it was Senate Republicans’ actions, first and foremost, that “undermined the legitimacy of every action the current court takes.”
Others have attacked the legitimacy of Justice Kavanaugh, and not just because they reject his denial of uncorroborated and unsubstantiated allegations against him. Even before Christine Blasey Ford accused him of assault, Senators Ed Markey and Mazie Hirono deemed Kavanaugh unworthy of the Court simply because he was being appointed by President Trump, who, they said, was a “co-conspirator” in criminal activity. “His nomination is tainted and should be considered illegitimate,” Markey said.
Finally, still others question the legitimacy of a Court whose members were appointed by politicians whose party does not hold a national political majority. The day after Justice Ruth Bader Ginsburg’s death in September 2020, journalist Ron Brownstein wrote that if Republicans were able to fill the vacant seat (as they did with the appointment of Justice Barrett), then “it would mark the third time a GOP-majority Senate that represents well below half of the US population . . . would elevate a justice chosen by Trump, who lost the popular vote, to the Supreme Court,” raising “enormous questions about the Supreme Court’s legitimacy.”
For such critics, therefore, the Court’s legitimacy purportedly hinges on circumstances utterly disconnected from the justices’ own work as judges. Our Constitution provides for judges to be appointed by presidents, upon the advice and consent of senators. So partisan politicians choose nonpartisan judges. It might seem like a paradox, but seen rightly, this exemplifies our Constitution’s fundamental republicanism: Even our judges are appointed by the people’s representatives, not a constitutional deus ex machina.
But for that very reason, the Court’s constitutional legitimacy surely cannot rest on the politicians who appointed the justices; were it otherwise, then which justices would not be tainted by the shortcomings, even outright venality, of the politicians who put them on the Court? Justice Louis Brandeis’s legitimacy was not undermined by the fact that he was appointed by a racist president who was elected with far less than 50 percent of the popular vote. He was appointed by the Constitution’s process—President Woodrow Wilson nominated him and secured the Senate’s advice and consent for his appointment. As did Justices Gorsuch, Kavanaugh, Barrett, and all of their colleagues.
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For other critics, the justices’ decisions are the source of their alleged illegitimacy. Some pin their criticism on particular cases—most recently, Dobbs. But other critics frame the criticism more broadly: Tribe and Gertner, for example, tie the Court’s legitimacy (or, by their reckoning, its illegitimacy) to the justices’ interpretation that the Constitution limits Congress’s power to subject some states’ voting laws to Justice Department supervision, and the lack of more aggressive judicial intervention against states’ gerrymandering of electoral districts. All of this, they argue, serves to “entrench the power of one political party,” creating a “uniquely perilous moment that demands a unique response.”
Here, too, the criticism seems starkly divorced from the basic premise of the Court’s constitutional role. The justices hear and decide cases under the Constitution and other laws of the United States. To the extent that such cases stifle the power or ambitions of a national political majority, what can that mean for the Court’s constitutional legitimacy? The Constitution itself constrains the power and ambitions of majorities; and within our constitutional system, the Court was made to be the part of government least responsive to political majorities.
Critics may reply that the problem here is not simply that the Court’s decisions impair the power of political majorities, but that these decisions have simply been wrong. Yet even this criticism falls short, if for no other reason than the fact that the Supreme Court—like any other human institution—will inevitably get some decisions wrong, even when the justices get the final word on the subject at hand. “We are not final because we are infallible,” Justice Robert Jackson quipped in a 1953 opinion. “We are infallible only because we are final.”
One can imagine a scenario in which the Supreme Court were to get so many decisions so clearly wrong that it would call into question the justices’ own capacity to carry out their duties as a court. But even the Court’s own critics, focused on a tiny handful of particularly controversial subjects in which the Court’s decisions are hardly unreasonable, do not attempt this argument, nor could they.
But in considering these critics’ attacks on the justices—on their opinions, or on their decisions—one is struck by the disconnection between their criticisms and their purported reform. Court-packing would not change the way that justices are appointed. Nor would it improve the Court’s capacity for hearing and deciding legal cases; if anything, packing the Court with more justices would only complicate and impair the justices’ collective ability to conduct oral argument, deliberate together, and write coherent institutional decisions. Court-packing would not actually improve the Court as a court.
Today’s Court-packers sometimes point out that Lincoln and Congress added a 10th seat to the Supreme Court during the Civil War; but they ignore the fact that this seat was added simply not to “pack the Court,” but because a 10th justice was needed to govern the new 10th Circuit in distant California and Oregon. Lincoln reaped the benefit of appointing another justice, of course, but that was an additional benefit from legislation enacted to actually improve the Supreme Court’s judicial functions. Today’s critics would pack the Court for different reasons, and with different consequences.
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And then there are two lines of criticism that have emerged from justices on the current Court. First, Justice Sonia Sotomayor has suggested that the Court’s abandonment of precedents, following a change in personnel, undermines the Court’s legitimacy. She pressed this point at oral argument in Dobbs. Asserting that Mississippi had legislated its abortion restrictions simply “because we have new justices on the Supreme Court,” she asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” When Dobbs was decided, dissenting Justices Sotomayor, Stephen Breyer, and Elena Kagan wrote that the Court’s “legitimacy requires, above all, that we adhere to stare decisis in ‘sensitive political contexts’ where ‘partisan controversy abounds.’” (So much for Brown v. Board of Education.) And they added that “the legitimacy of this Court,” which was “earned over time,” can be “destroyed much more quickly.”
In the weeks following Dobbs, Justice Kagan offered a more nuanced discussion of judicial legitimacy. Addressing a conference hosted by the U.S. Court of Appeals for the Ninth Circuit, she defined the Court’s legitimacy in terms of “public confidence.” The way the Court, she said, “retains its legitimacy and fosters public confidence is by acting like a court … by doing something that is recognizably law-like.” Thus the Court does not lose its legitimacy by rendering unpopular decisions—and she disclaimed any implication that she was referring to specific cases. Rather, she continued, the Court would maintain the public’s confidence by respecting precedent (though “not necessarily in every case”), particularly in the aftermath of a change in the Court’s personnel. Second, the justices can preserve the Court’s legitimacy of “consistent application of methodologies that constrain and discipline judges,” making clear that their decisions rest not on the judges’ policy preferences or value judgments, but rather their application of neutral judicial principles. And finally, the justices can slow “the pace of change” in the law, by narrowing the scope of their decisions in particular cases.
Kagan’s account of the Court’s legitimacy deserves attention. She is not reflexively criticizing her colleagues for the popularity of their opinions, let alone the circumstances surrounding their appointments. And she is not even taking for granted that public criticism of the Court’s decisions should be taken at face value; the Court, after all, will make unpopular decisions that happen to be correct. Rather, her account of the Court’s legitimacy focuses on the Court as a court, in terms of the justices’ basic work of applying laws and precedents to decide cases. Her account of legitimacy looks first to the Court’s methods, and only second to people’s reactions.
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As it happens, Kagan’s sense of the Court’s legitimacy echoes somewhat the sense of the late Justice Scalia. He expressed this best in Planned Parenthood v. Casey, where he dissented from the Court’s reaffirmation of Roe.
Throughout his judicial service, from the years before Casey through the decades after it, Justice Scalia framed the Court’s responsibility, and thus its legitimacy, primarily in terms of judicial methodology. That is the purpose of the originalism and textualism he espoused: Only by interpreting the Constitution in accordance with its original meaning, and only by interpreting statutes in accordance with the original meaning of their text, could justices faithfully carry out their responsibility to act as judges rather than as legislators from the bench. “We’re just doing lawyers’ work,” interpreting statutes and the Constitution, he would sometimes say.
But in Casey he connected the Court’s methods to the public’s confidence. Invoking “the twin facts that the American people love democracy and the American people are not fools,” he warned that the Court’s failure to constrain its own discretion with an originalist judicial methodology would undermine the people’s respect for the Court’s institutional power and independence: “As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone.” But, he warned, if “our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different.” If the Court does not constrain itself with such rules, “then the people should demonstrate, to protest that we do not implement their values instead of ours.” (Emphases all Scalia’s.)
In a sense, Scalia was making the same point in 1992 as Kagan in 2022, though with one important caveat: Where she was somewhat agnostic in her endorsement of a particular methodology, Scalia clearly was not. His account strongly implied a presumption that an originalist Court would deserve and maintain the public’s respect. Well, perhaps not—if push came to shove, Scalia’s account of the Court’s legitimacy would seem to rest on the side of method, not the side of mass acceptance. But in Casey and his other writings, Scalia exuded confidence that the latter would follow from the former.
And he seemed to inspire similar confidence in the generation of originalists that followed—a confidence that a sufficiently large portion of the American people would accept, even celebrate, an originalist Court’s decisions. And not without reason: Constitutional originalism became a central tenet of the modern conservative coalition, one of the few truly unifying aspects of the Republican Party after the Cold War’s end.
But by presuming that public support would or should follow from originalist methodology, conservatives were wagering either that the American people would accept originalist decisions regardless of the political stakes, or at least that the public’s lack of acceptance would not undermine the Constitution’s rule of law. It was a theory for the courts, and a hope for the people.
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As it happens, Alexander Hamilton explored these themes in his own famous defense of the Supreme Court. In Federalist No. 78, he responded to criticism that the justices’ life tenure and independence would make them unaccountable to the people. Hamilton’s case for the Court, and his account of the Court’s constitutional legitimacy, looked both to the character of the Court and to the character of the people. It is well worth considering today; indeed, no explanation of the Court’s legitimacy in America’s constitutional system rivals it.
Hamilton’s account, like Scalia’s, starts from the premise that the Court’s responsibility is to interpret and apply our written laws faithfully. “The interpretation of the laws is the proper and peculiar province of the courts,” he writes. “A constitution is, in fact, and must be regarded by the judges, as a fundamental law.” When judges face a choice between the Constitution and other laws—indeed, even other laws with overwhelming popular support—then they “ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
And Hamilton, like Scalia in his Casey dissent, emphasized that the Court’s failure to faithfully apply the Constitution would undermine the entire reason for creating an independent judiciary separate from Congress. If the courts pursued judicial “pretence,” substituting “their own pleasure to the constitutional intentions of the legislature,” then the people would have reason to conclude “that there ought to be no judges distinct from” the legislature itself. Hamilton’s account of legitimacy therefore rests on both the judges’ method and the public’s at-least-tacit acceptance.
But looking more closely, we can see the subtle key to Hamilton’s account of judicial legitimacy. For Hamilton, the courts would not just faithfully apply the laws; they would also instill public confidence that their assertions of judicial power were based exclusively on judicial duty, especially when the courts were thwarting popular opinion. Such moments would call for “an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution,” but if done well they would win the public’s respect. “The benefits of the integrity and moderation of the judiciary have already been felt in more States than one,” and they have “commanded the esteem and applause of all the virtuous and disinterested,” he writes. For “considerate men . . . ought to prize whatever will tend to beget or fortify that temper in the courts”; anything less would “sap the foundations of public and private confidence” and sow “universal distrust and distress.”
Crucially, Hamilton’s account of public confidence did not simply assert or presume that the right interpretive method would secure the public’s support. Rather, he explored somewhat differently how the Court’s work would engage the people.
Those who read Federalist No. 78—mostly law students and political science majors—know its famous lines: that the judiciary “will always be the least dangerous” branch, having “neither Force nor Will but merely judgment.” But in the surrounding lines, Hamilton makes clear what this actually entails. First, because the judiciary has neither force nor will, it “can take no active resolution” in the great disputes of the day. Rather, it stands neutrally and passively until a case reaches it, and then—only then—can the judges decide the case as a matter of judicial duty.
Second, because the judiciary is the weakest branch of government, “all possible care is requisite to enable it to defend itself against [the other branches’] attacks.” Hamilton is referring clearly to the judicial independence needed to protect judges from direct retaliation by Congress. But because he also recognizes that the people ultimately have it within their power to abolish the courts’ independence, and that they could do so upon losing faith in the Court, Hamilton reminds us that the justices themselves will need to take all possible care to reassure the people that their decisions reflect not their “will” but their duty.
And third, the Court can instill this confidence by nullifying Congress’s laws only as a last resort. While no legislation “contrary to the Constitution can be valid,” the Court must take care not to jump to that conclusion. Hamilton makes the point twice. He initially notes that whenever there happens to be an “irreconcilable variance” between the Constitution and a statute, the Constitution must prevail. But this is a very careful choice of words, for it reminds us that any reconcilable variance should be resolved without striking down the statute—rather, by accepting a reasonable interpretation of the statute that avoids unconstitutionality.
Then he reiterates the point more bluntly. If the Court faces a seeming contradiction between the Constitution and a statute, then “so far as they can by any fair construction be reconciled to each other[,] reason and law … dictate that this should be done.” Again, the Court should strike down the statute only as a last resort, and only after making clear that the statute’s seeming constitutional problem cannot be reasonably and faithfully interpreted away.
In all of this, Hamilton is making a case not simply for a Supreme Court, but for a Supreme Court in a republican Constitution. The Court’s legitimacy depends on the justices’ work—not just in terms of how they interpret laws, and how they are “bound down by strict rules and precedents,” but also in how they implement those interpretations and convey their work to the public. And the Court’s legitimacy further depends on the people’s work, as citizens—not simply giving a heckler’s veto to the inflamed passions of the moment, but by considering the Court’s work with deliberate reason.
That, then, is the character of the Court’s constitutional legitimacy. In the Constitution, the American people entrusted great power to the Court. In turn, the Court must exercise that power—and must be seen as exercising that power—only as a matter of duty, never as a matter of willfulness, in the eyes of citizens who judge the Court’s own work in good faith.
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In our own time, this requires much of the Supreme Court. As Scalia recognized, the Court’s fundamental duty points the justices toward constitutional originalism, taking the Constitution seriously as law that binds not just the people and elected politicians but also the judges themselves. The justices’ constitutional originalism will incur the criticism of many partisans—including those who alternate between castigating the Court for doing too much to undermine democracy and castigating the Court for doing too little to conjure anti-democratic rights more to the critics’ own liking. But that particular line of criticism reflects more poorly on the critics than on the Court. And such criticism bears no connection to the Court’s legitimacy as a court, rather than as a legislature.
Yet Hamilton’s account of the Court’s work—not just judicial method, but also judicial temperament—offers lessons for originalists too, especially those who want the Court to do more, and more quickly. For certain aspects of the modern Supreme Court’s work seem increasingly difficult to square with the classic conception of the Court as a neutral, passive body that decides cases not as a matter of will, but of duty.
First among them is the Court’s power to choose its own cases. For nearly a century, since the Judiciary Act of 1925, Congress has given the justices more and more discretion over its own docket. Instead of deciding hundreds of cases each year mainly as a matter of obligation, the justices now decide just dozens of cases each year mainly as a matter of discretion. This comes worryingly close to the very “will” that Hamilton disclaimed for the federal judiciary; when the justices pick their cases, it is difficult to say honestly and convincingly that the Supreme Court still takes “no active resolution whatever” in the direction of American government. It casts a politicized light across the Court’s work by conveying the sense that the justices are seizing opportunities to decide certain issues. Congress helped to create this problem, and it should help to solve the problem by amending the 1925 Act and other statutes that give justices discretion over the docket; if the Court were obligated by law to hear every case in which a federal court of appeals had declared a law unconstitutional, or every case in which the appellate courts had split on the question of a law’s constitutionality, then the justices would decide many more cases but as a matter of duty, not will.
A second reform echoes the first, but it owes solely to the justices themselves. In recent decades, dissenting and concurring opinions have increasingly invited litigants to bring cases teeing up particular constitutional issues, or urged Congress to write future laws achieving particular policy outcomes. As with their selection of cases, a justice’s call for new litigation or legislation is neither commanded nor contained by the duties of their judicial office. It can be seen only as an expression of the justice’s own will, anathema to the constitutional spirit that Federalist No. 78 embodied. We can only hope that the justices will begin to restrain themselves more in this respect.
A third reform goes not to how cases arise, but to how they are decided. All federal courts have the power to grant some form of relief not just at the end of a case, but even in its early stages—the issuance of stays, temporary restraining orders, preliminary injunctions, or other injunctive relief that binds the parties while the case is proceeding. Such orders can completely prevent the government from enforcing a seemingly unconstitutional law or policy until the courts fully resolve the litigation The decision to grant or deny such relief at the early stage of a case is partly a question of law, but largely a question of the judges’ sense of the harms done by either granting or withholding such relief while the litigation is making its way through the judicial process.
In the Supreme Court, this has come to be known as the “shadow docket,” since the Court grants such relief without the full briefing, oral argument, and opinions that characterize the Court’s normal docket. By that or any other name—the “emergency docket”—this aspect of the Court’s work has grown increasingly controversial among progressives, at least inasmuch as recent cases have granted emergency injunctive relief to religious groups challenging onerous or discriminatory Covid-related policies, but not to pro-abortion groups challenging Texas’s recent anti-abortion bill.
The Court’s emergency orders reflect in no small part the increasingly swift and sweeping powers asserted by state governors and federal administrators, as well as the lower courts’ own increasingly confident issuance of preliminary injunctions with nationwide effect. The administrative state is ever accelerating, and the courts are keeping pace.
This problem requires reforms to the modern administrative state. But it also puts federal justices and judges in a position that ill suits their judicial character, because of the sheer discretion wielded by the judges and because of the speed with which the judges can deploy it. Hamilton argued that the executive branch boasts the most “energy,” but in modern litigation it sometimes seems that courts, even the Supreme Court, move fastest of all.
This problem is perhaps the most difficult to reform, precisely because preliminary relief is and always has been discretionary. The Roberts Court’s critics and proponents alike would agree that there is a legitimate need for such tools in the Court for at least some cases: death-penalty cases, religious-liberty cases, or still others.
As it happens, the Roberts Court itself has mitigated the problem in the last year, by fast-tracking the full review of some cases that might previously have been the subject of “shadow docket” injunctions instead. But this seems a problem that deserves both the courts’ and Congress’s attention. Both bodies should study the use of injunctions at all levels of the federal judiciary, and either might formulate rules that impose more consistency and predictability on their use. Then when the Supreme Court uses its emergency docket, or when lower courts issue nationwide injunctions, they will be less susceptible to charges of politicization.
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All these reforms focus on the courts, especially the Supreme Court, with an eye to the constitutional character, powers, and duties of judges. But just as a proper account of the Court’s legitimacy looks to both the Court and the people themselves, an account of today’s debates over the Court should look to the American people—to their character, powers, and duties as citizens.
We have no duty to simply accept the Court’s judgments. As Lincoln emphasized, we must not abdicate our own fundamental duty, as citizens, to preserve our Constitution by governing ourselves through our political and civic institutions. But this entails a responsibility to try to discern, in good faith, when the Supreme Court is right and when it is wrong.
We need not all become instant experts in every case before the Court; we need to live our lives, and if anything, Twitter serves as a daily reminder that even lawyers and law professors, though never lacking for confidence, fall far short of the ability to judge the Court’s work accurately.
But those in a position to help the public better understand the Court’s work owe their fellow citizens the best and most honest effort to do so. This includes our elected leaders, teachers, legal scholars, lawyers, historians, and many others.
Too often, however, these are precisely the ones who are the least self-restrained in either their condemnation or praise of the Court’s latest opinion. Today it is the people closest to the Court who are most likely to inflame the “ill humors” that, Hamilton warned in Federalist No. 78, encourage “dangerous innovations in the government, and serious oppressions of the minor party in the community.”
He hoped that dangerous instincts would give way “to better information, and more deliberate reflection,” among the people themselves. So should we.
1 I served on the commission.
Photo: JOSHUA ROBERTS/Reuters/Corbis
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