Legitimizing the ?Illegitimate': How the Supreme Court Can Restore its Legitimacy in the Public Eye

• Author: Mo Kahn
• Position: J.D., Georgetown University Law Center (expected 2023)
• Pages: 825-845

Legitimizing the ‘Illegitimate’: How the

Supreme Court Can Restore its Legitimacy in the

Public Eye

MO KAHN*

INTRODUCTION

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,”

1

Democrats, in turn, charged the Republican-

controlled Senate of “court-packing”—in reference to the swift confirmation

process of Justice Amy Coney Barrett.

2

Tyler Olsen, Dems Turn Around Accusation, Say GOP is Court-Packing: Here’s what that Phrase

Actually Means, FOX NEWS (Oct. 12, 2020), https://www.foxnews.com/politics/experts-push-back-biden-

democrats-republicans-court-packing [https://perma.cc/N42K-KE5K].

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.

3

Emma Brown, California Professor, Writer of Confidential Brett Kavanaugh Letter, Speaks Out About Her

Allegation of Sexual Assault, WASH. POST (Sept. 16, 2018), https://www.washingtonpost.com/investigations/

california-professor-writer-of-confidential-brett-kavanaugh-letter-speaks-out-about-her-allegation-of-sexual-assault/

2018/09/16/46982194-b846-11e8-94eb-3bd52dfe917b_story.html [https://perma.cc/RD5T-KN2T].

These contentious moments of con-

stitutional hardball

4

provided the backdrop for the alleged illegitimacy of

today’s Supreme Court.

But can a court, even one made up of politically driven nominations, be consid-

ered 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

* J.D., Georgetown University Law Center (expected 2023) © 2022, Mo Kahn. Special thanks to Elliot

Fuchs and Molly Connolly for their help in this project.

1. Official Statement, Senate Majority Leader Mitch McConnell, McConnell on “Court-Packing” Threats:

Democrats Abuse Language to Set Up Abuse of Power (Oct. 14, 2020) (on file with author).

2.

3.

4. See Mark Tushnet, Constitutional Hardball, 37 J. MARSHALL L. REV. 523 (2004).

825

what they deem “salient decisions.”

5

This Note examines the features of the

Court that uphold its legitimacy. I contend that the Court does not lack legiti-

macy 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 socio-

logical one.

6

The Court is not broken beyond repair as some members of

Congress or the media may believe.

7

Alex Swoyer, Alexandria Ocasio-Cortez Backs Court-Packing, Says Court Shouldn’t Overturn Laws

Backed by Advocates, WASH. TIMES (Apr. 15, 2021) https://www.washingtontimes.com/news/2021/apr/15/

alexandria-ocasio-cortez-backs-court-packing-says-/ [https://perma.cc/FTV8-977C].

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 politi-

cal 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 le-

gitimacy and propose efforts to mitigate or eliminate those elements’ influ-

ence 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.

I. WHAT CONSTITUTES LEGITIMACY

Recently, much ink has been spilled over the issue of the “illegitimacy” of the

current Court with some proposing that the Court must undergo radical change to

repair this defect. It is important, therefore, to understand the origins of the

Court’s legitimacy and the factors that make up and enhance the legitimacy of

our judicial branch.

5. Brandon L. Bartels & Christopher D. Johnston, On the Ideological Foundations of Supreme Court

Legitimacy in the American Public, 57 AM. J. POL. SCI. 184, 186 (2013). The study analyzed the percentage

of liberal-leaning decisions in every supreme court term since 1953 and determined salience based upon

whether or not the decision appeared on the front page of the New York Times the next morning.

6. See RICHARD H. FALLON JR., LAW & LEGITIMACY OF THE SUPREME COURT (1952).

7.

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