[[link removed]]

IT’S TIME TO ACCEPT THAT THE US SUPREME COURT IS ILLEGITIMATE  
[[link removed]]


 

Ryan Doerfler and Samuel Moyn
December 19, 2025
The Guardian
[[link removed]]


*
[[link removed]]
*
*
[[link removed]]

_ Reformers must insist on remaking institutions like the US Supreme
Court so that Americans don’t have to suffer future decades of
oligarchy-facilitating rule that makes a parody of the democracy they
were promised. _

"US Supreme Court", photo by Mark Fischer (CC BY-SA 2.0)

 

The justices of the US supreme court
[[link removed]] – even its
conservatives – have traditionally valued their institution’s own
standing. John Roberts, the current US chief justice, has always been
praised – even by liberals – as a staunch advocate of the
court’s image as a neutral arbiter. For decades, Americans believed
the court soared above the fray of partisan contestation.

No more [[link removed]].

In Donald Trump [[link removed]]’s
second term, the supreme court’s conservative supermajority has
seized the opportunity to empower the nation’s chief executive. In
response, public approval of the court has collapsed
[[link removed]].
The question is what it means for liberals to catch up to this new
reality of a court that willingly tanks its own legitimacy. Eager to
realize cherished goals of assigning power to the president and
arrogating as much for itself, the conservative justices seemingly no
longer care what the public or the legal community think of the
court’s actions. Too often, though, liberals are responding with
nostalgia for a court that cares about its high standing. There is a
much better option: to grasp the opportunity to set right the supreme
court’s role in US democracy.

Attention to the body’s legitimacy surged in the decades after the
extraordinary discussion on the topic in Planned Parenthood of
Southeastern Pennsylvania v Casey_ – _the 1992 case that memorably
preserved the abortion rights minted in Roe v Wade_ _despite recent
conservative additions to the court. “The Court’s power lies in
its legitimacy,” former justices Anthony Kennedy, Sandra Day
O’Connor and David Souter explained in their joint opinion, “a
product of substance and perception that shows itself in the
people’s acceptance of the Judiciary as fit to determine what the
Nation’s law means and to declare what it demands”. The fact of
popular acceptance of the institution’s role was itself a
constitutional and legal concern.

Compared with the prior quarter-century, when they angled for just one
justice (often Kennedy) to swing to their side, it was already clear
as Trump’s first term ended how much was going to change with Amy
Coney Barrett’s conservative substitution for Ruth Bader Ginsburg.
Yet liberal justices generally proceeded
[[link removed]]
as if their conservative peers would continue to take their own
institution’s legitimacy seriously. They focused on warning
conservatives against further eroding it. The_ _dissent in Dobbs v
Jackson Women’s Health Organization, which removed the federal right
to abortion, is a classic example. The liberal justices lionized
Kennedy and other conservatives for refusing to overturn Roe v Wade
out of the need they cited in Casey_ _to maintain the supreme
court’s image.

That was then. In Trump’s second term, the court has ceded to him
near total control over federal spending, even as the president is now
openly threatening to withhold funds from “blue” states and
projects not aligned with administrative “priorities”. Authorized
by the court to engage in racial profiling, masked federal agents
continue to descend upon “Democrat-run” cities, subjecting Latinos
and now Somalis to ongoing abuse.

Most recently, the court hinted at its plan to declare most, if not
all “independent” agencies unconstitutional, allowing Trump to
fire members of the Federal Trade Commission and the National Labor
Relations Board – though Chief Justice Roberts did suggest that the
Federal Reserve might be different, drawing sighs from legal
commentators (and sighs of relief from investors). The conservative
justices appear wholly unbothered by the howls that the court is no
more than a partisan institution, turning their destructive attention
next to what remains of the Voting Rights Act.

Yet with the conservative justices shattering the supreme court’s
non-partisan image during Trump’s second term, liberals are not
adjusting much. The liberal justices – Ketanji Brown Jackson
[[link removed]], Elena
Kagan [[link removed]] and Sonia
Sotomayor [[link removed]] – have
become much more aggressive in their dissents. But they disagree with
one another about how far to concede that their conservative
colleagues have given up any concern for institutional legitimacy.
Encouragingly, Jackson pivoted to “warning the public that the boat
is sinking” – as journalist Jodi Kantor put it in a much-noticed
reported piece
[[link removed]].
Jackson’s fellow liberals, though, did not follow her in this
regard, worrying her strategy of pulling the “fire alarm” was
“diluting” their collective “impact”.

Similarly, many liberal lawyers have focused their criticism on the
_manner_ in which the supreme court has advanced its noxious agenda
– issuing major rulings via the “shadow” docket, without
full-dress lawyering, and leaving out reasoning in support of its
decisions.

What appears to matter for such respectful institutionalists, most
prominently the liberal professor Stephen Vladeck
[[link removed]], is that the errant, reactionary justices
rationalize_ _their disastrous rulings. But aside from the fact that
few Americans read their opinions in the first place, the objection
presupposes that a more enlightened despotism ought to be the goal –
that the justices trashing the respect Americans once had for them
merely need to explain themselves, instead of giving up their power to
inflict so much ongoing harm.

Some liberals worry that concluding the supreme court is beyond
redemption is too close to “nihilism” about the constitution, or
even about law itself. In the aftermath of Trump’s re-election,
Professor Kate Shaw remarked
[[link removed]]:
“I don’t think abandoning the constitution in the course of
abandoning institutions is the right way forward or is something that
we can survive.” Vladeck cautioned [[link removed]]
similarly against “doomerism”, warning the “rule of law” in
the United States might “struggle to survive” the “emergence of
any kind of popular consensus that law increasingly doesn’t
matter”.

Such qualms suggest some can’t imagine an alternative to a
legitimate supreme court even once the institution itself has
abandoned that role. Much like in the early 20th century
[[link removed]],
Americans today are responding to a series of institutional failures
with an extended period of constitutional rethinking. Tracing many of
those failures to the undemocratic features of our written
constitution – the electoral college and the Senate, most notably
– reformers are proposing creative solutions
[[link removed]]
or workarounds
[[link removed]]
that might move us in the direction of an actual democracy.

Similarly, progressives are increasingly converging on the idea of
both expanding and “disempowering
[[link removed]]”
federal courts. Attentive to the reality that the supreme court
especially is not and rarely has been their friend, left-leaning
advocates are finding ways to empower ordinary people, trading the
hollow hope of judicial power for the promise of popular rule.

To label as “nihilists” those sketching an alternate, more
democratic future is, in other words, not only mistaken but outright
bizarre. Rather than adhere to the same institutionalist strategies
that helped our current crisis, reformers must insist on remaking
institutions like the US supreme court
[[link removed]] so that
Americans don’t have to suffer future decades of
oligarchy-facilitating rule that makes a parody of the democracy they
were promised.

In Trump’s second term, the Republican-appointed majority on the
supreme court has brought their institution to the brink of
illegitimacy. Far from pulling it back from the edge, our goal has to
be to push it off.

_Ryan Doerfler and Samuel Moyn teach law at Harvard and Yale_

_The Guardian_ [[link removed]]_ is globally renowned
for its coverage of politics, the environment, science, social
justice, sport and culture. Scroll less and understand more about the
subjects you care about with the Guardian's __brilliant email
newsletters_
[[link removed]]_,
free to your inbox._

* SCOTUS
[[link removed]]
* rule of law
[[link removed]]
* Amy Coney Barrett
[[link removed]]
* Ketanji Brown Jackson
[[link removed]]
* John Roberts
[[link removed]]

*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Bluesky [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]