In an 1832 case called Worcester v. Georgia, the Supreme Court ruled that the Cherokee Nation constituted a sovereign entity with rights in its territory that cannot be overruled by state governments. President Andrew Jackson, who supported the seizure of Native lands, was infuriated by Chief Justice John Marshall’s ruling, reportedly saying that “Marshall has made his decision, now let him enforce it.”
The literal wording of Jackson’s response is likely apocryphal, but it does capture the essence of his administration’s reaction. State authorities continued and escalated policies of ethnic cleansing blessed by Jackson and the federal government, forcing the Cherokee and other tribes off their lands in brazen defiance of the Worcester ruling.
The Worcester case illustrates something vital about the Supreme Court: It only has power inasmuch as people believe it does. Constitutionally speaking, the Court does not have the hard authority of the presidency or Congress. It cannot deploy the military or cut off funding for a program. It can order others to take actions, but these orders only hold force if the other branches and state governments believe they have to follow them. The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.
That legitimacy has been slowly eroded in recent years. The unprecedented blockade of President Barack Obama’s Supreme Court nominee Merrick Garland in 2016, the bitter fight over Brett Kavanaugh’s 2018 nomination, the GOP’s brazen disregard of the Garland precedent in 2020 to appoint Amy Coney Barrett after Justice Ruth Bader Ginsburg’s death, and the increasingly hardline conservative tilt of Court rulings have combined to do significant damage to the idea that the Court is somehow above politics. As a result, many Americans favor radical reforms to the Court: 66 percent favor term limits for justices, and a 45 percent plurality favors packing, or expanding, the Court.
Justice Samuel Alito’s leaked draft opinion that would overrule Roe v. Wade, if issued, could be yet another significant blow to Court legitimacy. The issue is not just that a majority of Americans will disagree with the ruling, though they almost certainly will. It’s that the process that led to this outcome has repeatedly exposed the Court as a vessel for politics by other means.
In that context, a reversal of what is probably the most contentious modern Supreme Court ruling — which established a 50-year precedent with longstanding majority support — will hit differently than previous controversial Court rulings. The damage could be severe and lasting, worse even than nakedly political decisions like Bush v. Gore.
While it may be tempting to cheer the collapse of the Court’s legitimacy given its track record, the Worcester case should give us some pause. In the American system, for better or for worse, the Court is supposed to serve as the final arbiter of political disagreements. If it lacks the legitimacy to play that role, it sets the stage for a constitutional crisis — especially if former President Donald Trump runs again in 2024.
How overturning Roe would damage the Court’s legitimacy
Political scientists who study the sources of Court legitimacy generally find that it stems from the perception that the Court is not a political body. The idea that justices are interpreting the law to the best of their abilities, rather than simply finding a justification for imposing their political preferences, is fundamental to the public’s faith in the institution as a whole.
For decades, this belief has been fairly widespread in the American public, allowing the Court to weather some very controversial rulings.
In 2000’s Bush v. Gore, for example, the Court divided along transparently partisan lines to elevate George W. Bush to the presidency, infuriating pretty much the entire Democratic Party. But the damage was not permanent: A 2007 study found that “the Court seems as widely trusted today as it was a decade ago,” with no significant divisions by partisan affiliation. The single best predictor of faith in the Court was not party, but an individual’s ideological commitment to the rule of law.
Since then, the American political system has come apart at the seams. Rising political polarization has led partisans on both sides to view politics in more zero-sum terms; rising distrust in mainstream institutions, particularly on the Republican side, has contributed to a general decline in confidence in government.
In theory, the Court may have been able to survive these anti-establishment headwinds. But since 2016, Republicans have taken a series of steps that have made it hard for anyone to see the Court as standing above politics.
When Justice Antonin Scalia died in February 2016, GOP Senate Majority Leader Mitch McConnell infamously refused to even schedule hearings for Obama’s replacement nominee, current Attorney General Merrick Garland, until after the 2016 election. McConnell’s argument was that no justice should be appointed in an election year, but the rationale was clearly political: Garland is a moderate liberal and would have tipped the Court from a 5-4 conservative majority to a 5-4 liberal one.
Then Donald Trump won the 2016 election despite losing the popular vote and proceeded to remake the Court along McConnell’s preferred lines.
First, he appointed staunch conservative Neil Gorsuch to the Court instead of Garland — preserving a 5-4 conservative majority on the court. Then longtime Republican operative Brett Kavanaugh was confirmed amid a furious battle over Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her, one of the most bitter and polarizing hearings in Supreme Court history.
And when Justice Ginsburg died in September 2020, McConnell and Trump rushed Amy Coney Barrett onto the Court before the 2020 vote — giving conservatives a 6-3 advantage, and revealing the alleged principle behind the Garland blockade to be a partisan fiction. (McConnell’s attempt to square this circle, citing an alleged norm against the Senate confirming nominations from opposite-party presidents in election years, was risible.)
By September 2021, the Supreme Court’s approval rating had fallen to 40 percent, the lowest number recorded in over 20 years of Gallup polling. The decline was largest among Democrats, but also visible among Republicans — who seem to be turning against institutions writ large in the wake of Trump’s 2020 defeat and subsequent claims that the election was rigged against him. Another September poll from Quinnipiac gave the Court an even lower approval rating, 37 percent, the lowest point in the firm’s polling since 2004. A third poll, released in November, found that 61 percent of Americans believed the Court was motivated mainly by politics rather than law.
In an April article, political scientists Miles Armaly and Elizabeth Lane show evidence linking the decline in Court legitimacy to the past few years of partisan warfare. By sheer luck, the authors began fielding a survey on the effect of confirmation battles on Court legitimacy in the weeks before Ginsburg died — allowing them to follow up with the exact same participants immediately after her death. They found that McConnell’s rush to fill the position with a Trump appointee decreased Democratic voters’ faith in the Court on a variety of different measures, without improving it among Republicans.
“Our results suggest the Senate’s increased politicization of Supreme Court confirmation hearings harm the Court’s legitimacy,” they conclude. “Attitudes regarding the Court — often marked by their stability — are impacted by the actions of the elected branches.”
Of course, the Court itself hasn’t helped matters. Since the Trump appointments, the Court’s jurisprudence has lurched hard right. Chief Justice John Roberts, seemingly the sole conservative concerned with the Court’s above-politics reputation, can no longer join four liberals to rein in his colleagues’ policy ambitions.
This is the context in which Alito’s Roe draft opinion emerged. Much of the concerns about the opinion’s effect on legitimacy have focused on the leak of the draft — on how it makes the Supreme Court look like any other Washington institution. But this is inside baseball: The much bigger effect on Court legitimacy is more likely to come from the ruling itself, if it in fact becomes law.
A recent paper by Logan Strother and Shana Gadarian, political scientists at Purdue and Syracuse, respectively, argues that the rise of extreme partisanship has changed the Court’s ability to issue controversial rulings and maintain its legitimacy afterward. In the current climate, they find, “policy disagreement with Supreme Court decisions leads individuals to view that decision, and the Court itself, as being political in nature” — which, they also show, damages the Court’s fundamental legitimacy.
Since 1989, every Gallup poll on Roe v. Wade has found steady public support for keeping the ruling in place. In the closest poll, conducted in 2008, supporters outnumbered opponents by 19 percentage points (52 to 33). By 2021, that difference had risen to 26 points (58 to 32). Three other recent polls find even stronger support for keeping Roe. The consistency of these results over time, together with the visibility of the abortion issue, suggests the public’s views are deeply held.
In this context, it’s fair to think Alito’s hardline ruling — overturning Roe entirely, in no uncertain terms — would further erode the Court’s already weakened legitimacy in the eyes of the public.
You’ll miss Court legitimacy when it’s gone
The Supreme Court is a fundamentally undemocratic institution, one that has a long track record of reactionary decisions and a limited-at-best ability to promote progressive social change. Why shouldn’t a turn against it be cheered?
“Diminished public trust in the Court is a good thing,” as my colleague Ian Millhiser recently put it. “This institution has not served the American people well, and it’s time to start treating it that way.”
I agree with much of Millhiser’s critique of the Court. There’s a compelling argument that weakening its powers of judicial review — by, for example, adapting a model used in Canada, the UK, and New Zealand that gives legislators power to reject court rulings — could lead to both superior policy outcomes and a more democratically legitimate system. In theory, a decline in public faith in the Court could pave the way for fundamental reforms to its practices.
But changes to judicial review are exceedingly unlikely to happen in the near term, as are liberal proposals to add more seats to the Court or to end lifetime tenure. For now, we have to operate in a context where the Supreme Court still plays an essential role in the American political system. And especially in the context of a 2024 election where Donald Trump is likely to run again, the Court’s inability to credibly perform that role could precipitate a democratic crisis.
It is likely that there will be significant litigation surrounding the 2024 contest. The Supreme Court has final say on voting procedures, and the nature of its rulings will affect the way the public views the legitimacy of the election itself.
In the nightmare scenario, the Supreme Court could be called on to adjudicate a Republican effort to overturn the results of a Biden victory at the state level. The groundwork for such an effort, as Barton Gellman wrote in the Atlantic, has already begun:
For more than a year now, with tacit and explicit support from their party’s national leaders, state Republican operatives have been building an apparatus of election theft. Elected officials in Arizona, Texas, Georgia, Pennsylvania, Wisconsin, Michigan, and other states have studied Donald Trump’s crusade to overturn the 2020 election. They have noted the points of failure and have taken concrete steps to avoid failure next time. Some of them have rewritten statutes to seize partisan control of decisions about which ballots to count and which to discard, which results to certify and which to reject. They are driving out or stripping power from election officials who refused to go along with the plot last November, aiming to replace them with exponents of the Big Lie. They are fine-tuning a legal argument that purports to allow state legislators to override the choice of the voters.
If the Supreme Court rules in favor of Trump’s claims on anything like an issue of this significance, there is a very real chance that large numbers of Democrats do not accept the ruling as legitimate or even binding, regardless of the merits.
This is not implausible, even though the federal judiciary held firm in the litigation surrounding the 2020 election. Gellman notes that four conservative justices have already signaled support for the so-called “independent state legislature doctrine,” which would give state legislatures untrammeled authority to set election rules and even toss out election results. If they used this idea to effectively authorize such an undemocratic action, who could blame Democrats for rejecting the Court’s decision?
Nor does the Roberts Court’s pro-GOP tilt guarantee legitimacy if it rules in favor of Biden. In that scenario, Trump and his allies will almost certainly claim the Court has been corrupted — and will likely persuade most Republican partisans. Think about the way Trump has turned against staunch Republican officials, like Georgia Gov. Brian Kemp and Secretary of State Brad Raffensperger, who had the temerity to accurately conclude that the 2020 election was on the level.
Indeed, Republican Ohio Senate candidate J.D. Vance has already proposed ignoring Court rulings that might get in the way of a second Trump term’s agenda:
I think that what Trump should do, if I was giving him one piece of advice: Fire every single midlevel bureaucrat, every civil servant in the administrative state, replace them with our people. And when the courts stop you, stand before the country, and say “The chief justice has made his ruling. Now let him enforce it.”
If any major faction rejects a Court ruling in the way that Jackson rejected Worcester, we will be thrust into a constitutional crisis. That’s a recipe for instability, even outright civil violence — something we all now know to be a real possibility.
It’s important to be clear on who deserves blame for this state of affairs: It’s McConnell, Trump, and the Court’s conservative majority. They chose to politicize the Court and turn it into a vehicle to enact conservative policy they couldn’t pass through the legislature. Seizing control of the Court for this purpose is one of the biggest reasons — arguably the single biggest — why Republican elites decided to embrace Trump as fully as they have.
So, yes, it is good in one sense that the American people are recognizing what has happened to the Court. But the fact that it’s happened at all is a tragedy: The Court may not be a great institution in the long arc of history, but it performs a necessary function in our system as currently designed. What we’re seeing now is a particularly important example of the degree to which America’s democratic institutions are degrading — and even at risk of failure.
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