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Nothing that follows should be taken as an endorsement of the submission that the unpopularity of the consequences of a Supreme Court decision has any correlation with the legitimacy of the institution. The judiciary exists as the one and only apolitical branch of government because it is supposed to be insulated from public opinion.
Justices are meant to make decisions based on the letter of the law and the facts of each individual case. To outsource those decisions to the public’s generalized feelings about some subject matter upon which a case touches — abortion, affirmative action, immigration, etc. — would be an abdication of duty and a concession to lawlessness.
In other words: a real crisis of legitimacy.
But this is not the position of so many who cover the court in the media. Time and time again over the years, the media has spoken of a crisis of legitimacy hanging over the court, which they have pinned on its Republican-appointed, originalist majority and decisions that they describe as out of touch with public opinion.
Last fall, the New York Times’s editorial board asserted that “the court’s legitimacy has been squandered in the service of partisan victories,” and without any attempt at explaining how, that “the court has unmoored itself from both the Constitution it is sworn to protect and the American people it is privileged to serve.”
These arguments underpin even ostensibly straight-laced news write-ups. Earlier this month, Adam Liptak, who covers the court for the Times, reported on a decision reached earlier this month striking down Alabama’s congressional district map by quoting a progressive who opined that the decision would help preserve “the court’s fragile legitimacy.”
Then on Thursday, after the Supreme Court ruled that Harvard and the University of North Carolina’s use of race to make admissions decisions was unconstitutional, Liptak himself explicitly endorsed an even more insidious theory of the court’s eroding legitimacy.
“The ruling demonstrated that the court’s conservative supermajority has been moving at a brisk pace to take on some of the thorniest and most divisive issues in American society including abortion, guns and now race — all in the span of a year,” he wrote. “It also reflected President Donald J. Trump’s outsize imprint on the court after his appointment of three justices, renewing questions about whether the court’s approach, which on Thursday upended more than 40 years of precedent, threatens the stability of the law and the court’s legitimacy.”
And yet, in the very next paragraph, he’s forced to concede:
Public opinion polls offer a complicated picture of where people stand on affirmative action, and the numbers vary with how questions are phrased. But on balance, race-conscious admissions programs are unpopular, suggesting that Thursday’s ruling will not give rise to a backlash like the one that followed last year’s decision eliminating a constitutional right to an abortion.
That’s where an already flawed argument gets more galling still. The unstated, but nevertheless present implication here is that decisions that conform with public opinion, but diverge from those of New York Times journalists and the Democratic Party endanger the legitimacy of the court.
In a way, it’s clarifying. So that’s what the Times and the other outlets — including the Washington Post, USA Today, and The Atlantic actually mean when they parrot Democrats’ tired talking points about how the court is inadvertently undermining its own legitimacy.
In truth, it’s the Democrats and their allies in the media who are trying to do so by questioning the validity of decisions, oftentimes without a substantive analysis beyond “progressives don’t like this.”
If they insist on continuing to use tired buzzphrases about legitimacy to carry out this shameful campaign, those covering the court should at the very least be explicit in explaining what they mean when they use them.