Rumors of the Supreme Court’s Illegitimacy Are Greatly Exaggerated

A surefire prediction in American legal culture is that every May and June—as the Supreme Court’s term draws to a close and it issues the lion’s share of its most controversial opinions—an army of news stories will take to the battlefield wielding the word “legitimacy.” Often quoting politicians who can’t get enough of it, these stories tell of “a crisis of legitimacy,” saying that the court “has destroyed its legitimacy and there is no reason to respect it” and that trust in the court is so low that “the legitimacy of the decisions doesn’t hold as much water as it used to.” Over the past year, some of this trend has been turbocharged by various allegations of personal misdeeds among the justices, but for the most part, the narrative of an “illegitimate court” comes from those who disagree with the way those justices have ruled on specific cases.

While recently we’ve heard this hue and cry mostly from the political left in the wake of Dobbs, it can also emanate from the right. The fury thrown at the court after it legalized same-sex marriage is one example. But while this annual festival of “legitimacy” talk is directed at the U.S. Supreme Court, we don’t hear nearly as much about other courts in our system, such as lower federal courts, state supreme courts or various state-level trial courts, which may actually deserve the “illegitimate” label in some cases.

Upon reflection, I think the reason is the one you might suspect: The highest court is supremely newsworthy. Also, and more importantly, I think “legitimacy” is an overused and usually vacuous term. To the extent it does have meaning in the context of the judiciary, however, I think it is better directed at some lower courts—particularly trial courts that are generally out of sight and out of mind. In these cases, the word “legitimacy” might have a … legitimate use.

Rules of Recognition

“Legitimacy” arises in various fields as a description of human institutions. Histories of the Middle Ages are replete with stories of how various rulers tried to establish legitimacy for themselves. William of Normandy may have conquered England through military force, but it helped that he plausibly could hold himself out as the legitimate heir to the recently departed Edward the Confessor. At other times, when claimants lacked a story for why they should govern, they stretched the rules—or just made them up. When English King Edward IV seized the throne from the hapless Henry VI in 1461, it helped that his House of York had cleverly reimagined the line of succession. Just a few years later, when Henry VII took power with even less of a hereditary claim, he laid on a big scoop of legitimacy by marrying Edward IV’s daughter.

In political science we often hear of “democratic legitimacy.” Today, the most serious accusation you can make against a law is that it was adopted in a non-democratic manner. As American legal scholar Akhil Amar likes to say, a major selling point of the U.S. Constitution is that it was adopted by one of the most democratic methods in world history up to that time—state-by-state conventions of delegates elected by “the people.” In a similar way, critics of regulations promulgated by administrative bureaucracies often emphasize that they lack the legitimacy that comes from direct adoption by a democratic legislature.

Why did it matter in the 15th century that Edward IV had a “legitimate” claim to rule, or that today we care that our laws have “democratic legitimacy”? After all, the young Edward could simply have said, “I’m king now. Deal with it.” And our legal system could just plod along and enforce laws wherever they come from.

It matters because there might be some pushback from the other players in society, in the form of not following orders or at least circumventing rules. In jurisprudence it’s sometimes been argued—most prominently by English philosopher H.L.A. Hart—that there are not only legal rules that people have to obey, but “rules of recognition” that help us figure out what a proper legal rule is in the first place. In other words, if a man with an army simply says “I’m king,” or a governor ipse dixit says an edict of his is a law, but there’s no buy-in from society as a whole, these statements contradict the relevant rule of recognition. (I should add that here I’m using “rule of recognition” in a loose, sociological and non-normative sense, and not necessarily endorsing how Hart and others use the concept.)

Another, complementary way of looking at legitimacy is not whether an official or institution corresponds to a rule of recognition but how well—or how badly—it does so. We could call this the intensity or range of legitimacy. At the low end of illegitimacy, maybe all the i’s weren’t exactly dotted, but that doesn’t mean we’re now entitled to ignore a law’s purported authority; it just means there’s something lacking and perhaps we need to fix it. An example might be when Chief Justice John Roberts and President Obama flubbed the presidential oath of office, leading Obama to recite it again the next day. At the other end of the range, an action or purported law might have so little legitimacy that it can be completely ignored, and it’s time to man the barricades.

We might plot these two conceptions of legitimacy on two intersecting axes. On one axis (the knowledge axis), the metric is how widely the criteria for legitimacy—the rules of recognition—are shared. Such rules might be, for example, kings must be descended by a male-only line of primogeniture, or only elected legislatures can make law. On the other (the intensity axis) is the degree to which there’s been a deviation from those rules of recognition, ranging from misstating an oath to seizing power through raw force.

Legitimate Laws

Legal scholars, unsurprisingly, are no strangers to legitimacy talk. Harvard law professor Richard Fallon, for example, wrote a fairly comprehensive book a few years ago called “Law and Legitimacy in the Supreme Court.” My small addition to this scholarship is to apply my two proposed axes to the legitimacy commentators I mentioned at the outset.

If we apply the rule of recognition approach to our legal system, we must ask: What are the rules of recognition for a legitimate court and legitimate rulings by its judges? A true rule of recognition must be something society can broadly agree on. Otherwise, it’s too far down the knowledge axis to be of much use. The supposed “rules” are then just contested opinions.

There are a few rules of recognition we can name without much trouble. One is that judges must give justifications for their decisions. Even if it’s just a short statement in a trial court and not a 100-page Supreme Court opinion, we expect judges to have reasons beyond “I felt like it” for why they rule for one side over the other. A judge also must be impartial because justice cannot be sold. I cannot slip a judge $100 before my hearing in hopes she’ll rule for me. Further, it’s universally recognized that the highest law in the U.S. legal system is the Constitution. Whatever a judge does, she can’t say, “I know the Constitution says X, but I don’t like it so I’m going to do Y.”

Beyond that, though, things start to get much less universal; the purported rules of recognition slip down the knowledge axis. Should we interpret the text of the Constitution based on what we think the words meant when originally adopted, or what they mean today? Is precedent sacrosanct, or can courts overrule it if judges think it is wrong? And if so, how wrong? If democratic acts of today are in tension with the words of the Constitution adopted a long time ago, should we give the benefit of the doubt to today’s “democracy”? Or is overruling a lot of democratically enacted legislation the whole point of the Constitution in the first place, guarding minority individuals against the tyranny of the majority?

Cries of “illegitimacy” generally revolve around these contested questions, not the universally accepted ones. The problem is that they’re on the low end of the knowledge axis. “Legitimacy” is in the eye of the beholder. Was overruling Roe v. Wade illegitimate? Is originalism the only legitimate method of constitutional interpretation? There are no broadly agreed-upon rules of recognition that provide the answers. So if someone says the Supreme Court is illegitimate because it is on the wrong side of a politically divisive issue, it sounds less like a piercing critique and more like a talking point. Sure, one can argue the Supreme Court was wrong to use (or not use) originalism. But does that make the decision, or the court itself, illegitimate? You’re only going to convince those who agree with you already.

That point brings us back to the intensity axis. What is confusing about all the annual cries of illegitimacy is that they’re usually vague as to how bad the illegitimacy is and what it entails. If the Supreme Court is “illegitimate,” does that mean that the rest of us should just ignore its decisions—not just private citizens but also the president, Congress, state legislatures, the police, etc.? In other words, is it like the guy with an army and no other reason for holding power? Sometimes the rhetoric shades into that, but most commentators don’t seem to actually believe wholesale revolution is necessary.

That’s good for the commentators because if people really did start ignoring the Supreme Court, that wouldn’t just mean ignoring rulings they don’t like. It would mean ignoring rulings they do like as well. Once a few players start ignoring rulings, the fear is everyone else will follow. Because of this, the few times straight-up disobedience to the court has been tried in U.S. history—such as with resistance to desegregation or clerks who ignored the same-sex marriage ruling—it hasn’t worked out very well. But, again, this kind of response to illegitimacy isn’t what the rhetoric generally implies. It seems that most of the time a “lack of legitimacy” is tossed around, it’s on the low end of the intensity axis—a warning to restate the oath of office rather than a call for revolution, a stronger version of “I don’t like what the court does.”

Therefore, when it comes to the Supreme Court, cries of “illegitimacy” seem to assume a rule of recognition that isn’t widely recognized (meaning it’s not really a rule of recognition) and is at a level of intensity that falls far short of actually ignoring the court because it’s “illegitimate.”

Lower-Court Legitimacy

By contrast, there are far fewer examples of legitimacy talk in the media and among legal commentators about the lower courts. And, again, that’s mostly because the pundit class just has less to say about them. The few exceptions tend to prove the rule. For example, after Governor Ron DeSantis appointed a number of justices to the Florida Supreme Court, the state legislature passed some laws that seemed to conflict with the court’s prior cases but that the legislators hoped the newly composed court would overrule. Some feared this might “erode public perceptions of the court’s legitimacy.”

Similarly, when the North Carolina Supreme Court invalidated a partisan gerrymander—but then reversed itself after new justices were elected—commentators from both sides questioned various justices’ “legitimacy.” These red-meat-and-potato issues are mini versions of what’s usually debated in Washington, D.C. I found even fewer examples of legitimacy-questioning in the lower federal courts. Most of the time, when lower courts are issuing rulings on the masses of issues highly important to our legal system, there’s not much “legitimacy” talk to be found.

It turns out, though, that the lower you go in the system, the more you would justifiably expect charges of illegitimacy. For example, my colleagues have documented that many municipal courts are primarily funded by the fines they collect. In other words, the judge’s salaries are paid if they fine people and aren’t if they don’t—giving judges an obvious incentive to impose more fines. That sounds a lot more illegitimate to me than an appellate judge subscribing to a disfavored interpretive ideology.

On a different issue, some state trial courts routinely jail defendants waiting for trial who can’t pay bail—meaning the poor get poorer while waiting months or even years for a trial date, even though they wouldn’t be in jail at all if they weren’t poor in the first place. As University of North Carolina law professor Carissa Hessick details in “Punishment Without Trial,” these indigent defendants often plead guilty just to get out of pretrial detention. That’s despite the traditional understanding that pretrial detention and bail is not a form of punishment, but simply a means to ensure defendants show up to court. In many court systems, that’s far from the prosecutors’ and judges’ minds—but securing a guilty plea certainly is not.

Do these defects mean that these lower courts are “illegitimate”? I’ll leave that to others to decide. But they seem to violate widely recognized notions of due process and equal treatment—some of the most basic rules of recognition in our culture. You’d expect questions of “legitimacy” to be thrown at them at least as much as at the nine judges who sit on the Supreme Court.

That being said, it may be that scholars, politicians and their media partners have so overused “legitimacy” as a buzzword that it doesn’t have the revolutionary sting that its dictionary meaning would otherwise suggest. And it’s probably a good thing that we’re not very eager to disobey court orders. But it would be nice to have correctly calibrated anger directed at the courts—high or low—instead of inappropriate language that’s continually turned up to 11. Think the ruling was wrong? Say “wrong.” Think it was extremely wrong? Fine, say “outrageous.” At my Center for Judicial Engagement, we say these things—including that judges have “abdicated” their duty—all the time. But we don’t tend to say “illegitimate.”

Do you think a particular court order was “illegitimate”? That’s your right. But if you’re not also writing a document that begins “When in the course of human events,” we’ll probably take you about as seriously as that boy with the wolf.