Why we question the legitimacy of the court

Byron Williams Winston Salem Journal

Chief Justice of the Supreme Court John Roberts recently defended the Supreme Court’s integrity by offering that high-profile decisions like those in the court’s last session should not raise doubts about its legitimacy. It is never a good sign when the Chief Justice of the Supreme Court has to defend the legitimacy of the institution.

“The Court has always decided controversial cases and decisions have always been the subject of intense criticism, and that is entirely appropriate,” Roberts said. But he also believed that unpopular opinions should not undermine the court’s legitimacy.

During the last session, the conservative-leaning Roberts Court flexed its legal muscles on issues ranging from climate change to immigration to the Second Amendment to separation of church and state to abortion.

According to a recent Gallup poll, public opinion of this dish sits at 55% disapproval. I suspect much of this is the result of high-profile judgments that go against public opinion. While the Supreme Court is not immune to public sentiment, it is not a majority institution. But there is a problem with the perception of legitimacy.

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As enshrined in the Constitution, the judiciary is a de facto political body. Appointments to the Bundesbank are made by the executive branch and confirmed by the Senate chamber of the legislature with advice and approval.

The court became hyperpoliticized when then-Senate Majority Leader Mitch McConnell made the decision not to hold hearings for Supreme Court nominee Merrick Garland in 2016, which also happened to be an election year.

Some claimed Republicans were following precedent by not giving Garland a hearing while the government was split: a Democratic president and a Republican-majority legislature. This is mere gossip with no factual basis. Here’s what Senator Lindsey Graham said in 2016 about not holding hearings for Supreme Court nominees during an election year: “I want you to use my words against me. If there’s a Republican president in 2016 and there’s a vacancy in the last year of the first term, you can say, Lindsey Graham said, ‘Let’s let the next president, whoever it may be, make that nomination.’”

But when that situation unfolded in 2020, Senate Judiciary Chairman Graham laid the groundwork for the admission of Judge Amy Coney Barrett in 10 days — eight days before the 2020 general election.

The political manner in which the current court achieved its 6-3 political majority cannot be ignored, but there is also a self-inflicted wound that contributes to the perception of legitimacy.

Ginni Thomas, wife of Deputy Supreme Court Justice Clarence Thomas, was closely associated with more than half of the groups lobbying the Supreme Court to have Roe v. to overthrow Wade, which constitutionally protected women’s right to abortion.

According to Politico, of the 74 amicus briefs tabled by conservative groups to oust Roe, 38 had links to Judge Thomas’ wife. How does that not present the visuals of a conflict of interest? As NYU law professor Melissa Murray observed, “The Thomases are normalizing the prospect of too close a connection between the Supreme Court and those litigating before it.”

It is difficult to maintain a semblance of legitimacy when obscured by political harassment and conflicts of interest.

None of this breaks the law, but the strength of the American project rests in perception.

The court should be a non-majority institution; The Constitution is a majority-independent document. But in America’s Democratic-Republican system of government, legitimacy depends as much on the path as it does on the outcome.

The Republican Party has won the popular vote for president once since 1988, but because of the Electoral College, it has won three of the eight elections, appointing five of the six conservative justices.

In the 21st century, as an established minority party, federal Republican politics has invested in the tools of minority rule to ensure generational control. Success is not calibrated by its ability to be the big tent offering market-based solutions; The Republicans today are a party that all too often invokes the worst impulses of human existence as the path to success.

If the 6-3 Conservative majority on the Supreme Court is viewed as an extension of Republican policy, as the evidence suggests, Chief Justice Roberts can say anything he likes about the court’s legitimacy. Outside the echo chamber of the Republican Party, few will hear it; and even fewer can be convinced of the opposite.


Rev. Byron Williams ([email protected]), author and presenter of “The Public Morality” on WSNC 90.5, lives in Winston-Salem.

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