Does the Supreme Court鈥檚 Power Pose a Threat to Its Legitimacy?

A court seen as becoming increasingly politicized in ways unpopular to the majority of Americans risks decades of reputational damage.

Why you can trust us

By Richard L. Pacelle, Jr.

4 MIN READ

Oct 13, 2021

The is the traditional day that the U.S. Supreme Court convenes for its new term. Analysts and soothsayers carefully read the signals and forecast the direction the court will take. This year the scrutiny seems a little more intense, as the court takes up several highly charged cases.

Alexander Hamilton famously thought the judiciary would be the weakest branch of government. He recognized that and could not enforce or implement its own decisions. Rather, it would need to rely on the good offices of the other branches.

As a , I have examined how the power and authority of the Court have waxed and waned over the centuries. The modern Supreme Court, dating back to in 1954, is one of the .

That immense power has arguably made the court a leading player in enacting policy in the U.S. It may also cause the loss of the court鈥檚 legitimacy, which can be defined as popular acceptance of a government, political regime or system of governance.

May It Please the Court

When the founders designed the U.S. government, . But gridlock has sapped its vitality. Presidents, who have enormous power in foreign affairs, are often constrained in domestic politics. The limits on the Supreme Court鈥攏o army, no administrative enforcers鈥攎ay be real, but the judiciary, with the Supreme Court at its apex, has become, in the view of some, the most powerful branch of government.

One of the lures of the Supreme Court is that a victory can be etched in stone as a precedent that can be used for decades.

The U.S. government, states, corporations, unions, and interest groups are among the so-called 鈥溾€� who strategically use the courts鈥攊ncluding the Supreme Court鈥攖o supplement their lobbying efforts and further their policy objectives.

An interest group like the might go to the Supreme Court to protect a bookseller鈥檚 free expression. The , now called simply the NAACP, might challenge state or national legislation that is perceived to suppress voting rights. The U.S. government might prosecute a defendant charged with violating an indecency act. because Congress, the president, or both, were not responsive.

Groups, of course, might also use the courts because the judiciary is the most appropriate venue to defend the rights of unpopular groups or ensure protections for defendants. The courts might . Groups might bring a case to protect the free exercise of religion by Muslims or challenge aid to religious schools as favoring one religion over another.

The Ultimate Resource: Legitimacy

The annually hovers around 50% to 60%, which is much better than Congress and typically better than the president. But that .

The , threats to , and whispers that have held the court up to more attention and threaten its legitimacy. And the . If the court is seen as too political, it will bleed this precious resource.

The Supreme Court has almost complete discretion over the cases that it hears. It annually gets , and it routinely takes about 85 cases for full review.

The court takes cases . But having a really important issue does not ensure the court will review it.

Sometimes the court simply wants to . The court may not want to get ahead of public opinion. For years, the court simply . Sometimes, the court tries to avoid an issue in hopes Congress or the states might be compelled to intervene.

on lower courts鈥攁nd on the justices themselves.

The for using the court to make policy decisions. This is controversial in part because the justices are not elected and enjoy lifetime tenure. They cannot be voted out of office.

Critics prefer that the to the elected branches of government, whose members could be removed by the voters if they oppose their policies. , which is the worst insult you could levy at a judge.

But the court鈥檚 willingness to push its way into the political maelstrom has quietly been welcomed by the other branches that can avoid the difficult questions and .

A Court of Law or of Men and Women?

As this Supreme Court term begins, opponents and proponents of reproductive rights are . Of course, this would not be the first time that such a prediction has been made.

Anyone analyzing the court needs to reconcile two competing realities. First, : and . Second, the court itself . In addition, despite the divisions on the court, usually about .

Two decades ago, seven of the sitting justices at the time expressed the , but a majority of that court never voted to relegate it to the dustbin of history.

On the other hand, when the court does overturn precedents鈥攆or instance, 鈥攊t is after the passage of time. , and Roe is approaching that hallmark.

Occasionally, the court makes a decision that is out of step with public opinion and may pay a hefty institutional price. When the , claiming that balanced the number of free and slave states, . When the , President and the court backed down.

Overturning Roe would invite criticism and closer scrutiny. It might expose the court as an institution that makes the law rather than one that interprets it.

This article is republished from under a Creative Commons license. Read the .

Richard L. Pacelle, Jr. is the professor of Political Science, University of Tennessee. Before coming to UTK, he taught at Indiana University and the University of Missouri-St. Louis and was department chair at Georgia Southern University. His teaching and research interests are in the field of American politics with a focus on public law and the Supreme Court. Pacelle is the author of five books and several articles and book chapters. His coauthored book, Decision Making by the Modern Supreme Court, was published by Cambridge University Press in 2011.