The campaign against the Supreme Court’s legitimacy

Ask anyone about politics these days and you’re likely to hear that our government institutions are in crisis. And not just government institutions, really, but American institutions: the nuclear family isn’t what it used to be; the local community group is drying up; the glazed donut bacon double cheeseburger is harder to find than in our glory days.

But in particular it’s our government institutions that are in crisis — which is why the Supreme Court is so important. As Congress buckles under the pressure of endless fundraising and cable news navel-gazing, as the presidency stagnates with its shambling commander in chief and massive bureaucracy, at least the Court still seems to work. In fact, it can seem like an oasis of deliberation in a political scene gone mad. All of this makes the recent attacks on the Court’s legitimacy that much more troubling.

This month marks the one-year anniversary of the Dobbs decision, in which the justices struck down Roe v. Wade and handed the abortion issue back to the states for the first time in half a century. And in fairness, the fallout has not been as bad as some predicted. There have been acts of vandalism and violence, yes, but no broader civil conflict, no Bleeding Kansas recast with pro-lifers and pro-choicers. For the most part, the states have stepped up, both through their legislatures and lawsuits before their judiciaries.

Yet the Supreme Court’s legitimacy has been called into question. It was only this spring that Congresswoman Alexandria Ocasio-Cortez argued that the Biden administration should “simply ignore” a court injunction that halted the availability of the abortion pill mifepristone. She wasn’t alone: several midwit journalists echoed her call, while Twitter egg Keith Olbermann called for the same on a ruling regarding guns.

All this has created a feedback loop whereby progressives demand indifference to the Court, then hold their conch shells to their ears and fret that the country is growing indifferent to its rulings. The Court is said to be suffering a “crisis of legitimacy,” though outside of the commentariat it’s hard to see where. Just under half of Americans still trust the judiciary, according to polling by Gallup, which is an all-time low but still leaps and bounds higher than just about anything else in the year 2023.

What we have isn’t a crisis of legitimacy so much as a campaign of delegitimization. It’s been waged for years, as Republican efforts to change the makeup of the Court have borne fruit. We saw it in the circus of the Brett Kavanaugh hearings back in 2019. We saw it in calls to pack the Court, an idea so radical that no less a meddler than FDR backed off it. And we saw it last year in the protests at Supreme Court justices’ homes, in the death threats sent to the Court, and, almost certainly, in the leak of an early draft of Samuel Alito’s Dobbs opinion. As this magazine goes to press, a flurry of mostly specious stories about the court’s conservative justices have been published in quick succession by left-wing outlets. This is very clearly journalism with an agenda: the goal is to chip away at the legitimacy of the court.

It’s important to remember that there’s a difference between critiquing the Court and delegitimizing it. Inspired by the left-leaning Warren Court and the Roe decision, conservatives once upon a time were deeply critical of the judiciary for assuming too much power, writing books with titles like Men in Black: How the Supreme Court is Destroying America. Yet despite this heat, it’s difficult to remember a single call by a credible rightwing figure to ignore the Court, let alone pack it. What conservatives did was much more practical if painfully slow: assemble a judicial farm team; get justices on the bench; change the Court from the inside rather than destroy it.

It worked, and it may be that some conservatives are now guilty of hypocrisy, given that they cried “judicial activism” only to go quiet once the Court agreed with them. Yet better that than what’s happening on the other side. When Andrew Jackson refused to acknowledge a Supreme Court ruling recognizing the sovereignty of the Cherokee Nation, it went down in history as a radical and racist usurpation of power. When Jackson’s fellow Democrats now pledge a similar cold shoulder, they get mostly shrugs. In this age of ends-justify-the-means politics, such tribalism is simply routine.

Which is a shame because, even as the Court has grown more political, it remains our most consensual branch of government. The 2021-22 term, which included the Dobbs decision, saw the justices decide almost thirty percent of their cases unanimously, about the same number as those that broke down 6-3 along “partisan” lines. The halcyon times of Antonin Scalia and Ruth Bader Ginsburg giggling over cocktails after work might be over, but a certain comity can still be found. It’s certainly stronger at 1 First Street than across the road at the Capitol building or half a mile away at the cable news stations.

The real problem with our federal government isn’t that the Supreme Court is too strong; it’s that the presidency is much too strong and Congress much too weak. Which brings us back to AOC. Maybe instead of undermining our system of government, she should take some advice that applies just as well to plenty of her fellow legislators: get off Twitter and do your job.

This article is taken from The Spectator’s June 2023 World edition.