Justices Grapple With Waning Public Confidence in High Court

It’s difficult to know what Chief Justice John G. Roberts Jr. could have meant when he said he didn’t “understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court” when speaking to a conference of judges and lawyers put on by the Tenth Circuit Sept. 9.

He seemed to get it when he upheld the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius and when he wrote a separate opinion in Dobbs v. Jackson Women’s Health to say he joined his conservative colleagues insofar has he was wiling to uphold Mississippi’s 15-week abortion ban but unwilling to abandon Roe v. Wade altogether.

And Justice Elena Kagan gets the connection.

If the “entire legal system is up for grabs” whenever one justice leaves the court and another joins, “that doesn’t seem a lot like law,” Kagan said in public remarks Monday.

Part of the problem is that there’s no clear consensus among the justices as to whether they should should care at all what the public thinks, according to Richard H. Fallon Jr., a law professor at Harvard Law School.

For a justice like Clarence Thomas, “it counts for nothing,” Fallon said, but in Roberts’ view it counts “quite a lot.”

‘Vagaries of Public Opinion’

The court is meant to be independent and counter-majoritarian, but as a practical matter its legitimacy is all it has. If no one has faith in the institution’s legal judgment and expertise, the other branches can, if they choose, reduce its power and deprive its rulings of any practical effect.

In 1962, Justice Felix Frankfurter cited Alexander Hamilton—who wrote in Federalist No. 78 that the court has neither the sword nor the purse—to say that its power ultimately rests on “sustained public confidence in its moral sanction.”

But Justice Samuel A. Alito Jr. explicitly rejected that in the Dobbs majority opinion, casting aside morality and public confidence as bases of the court’s legitimacy.

Alito said that the court “derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.” Stare decisis “should be no more subject to the vagaries of public opinion than is the basic judicial task,” he said.

Rereading Hamilton

According to Or Bassok, who teaches US constitutional law at the University of Nottingham and has focused much of his career on studying the legitimacy of the Supreme Court, Alito may be seeking to reinstate a distinction between legitimacy stemming from legal expertise and legitimacy stemming from public support.

In a yet-to-be-published paper, Bassok attributes the past 60 years or so of jurisprudence to a mischaracterization of Hamilton, and he argues that legitimacy based on legal expertise is all that matters.

The issue of public confidence “was born with the invention of public opinion polls,” Bassok said.

Yet despite his representation in Dobbs, Alito has been swayed by public opinion, Bassok argues.

For example, the decision in District of Columbia v. Heller, which Alito supported, held that the Second Amendment guarantees the individual right to carry firearms. But it was driven “by a social movement that gained public support rather than by constitutional reasoning that led to development in constitutional doctrine,” Bassok said.

Legitimacy Dilemma

Tara Leigh Grove, a professor at the University of Texas School of Law, argues that in politically polarized moments, Justices may feel compelled to compromise their legal judgment to protect the legitimacy of the court. Assuming there’s one true constitutional understanding, that tension can create a “real dilemma” for Justices.

Grove pointed to Naim v. Naim, a 1955 case that, she says, the Supreme Court declined to substantively decide because it was afraid of losing the public support following Brown v. Board of Education, decided the year before. Interracial couples who wanted to lawfully marry in states that had previously banned it had to wait until Loving v. Virginia was decided more than a decade later.

That would be like the court punting Obergefell v. Hodges, decided in 2015, to 2027, she said. Obergefell recognized the right of same-sex couples to marry.

According to Grove, a principled, methodological, strict textualist reading of the law shouldn’t lead you to favor one ideological side all the time.

“If you are really serious about textualism, you are going to issue mixed ideological decisions,” which may help the court weather the storm of unpopular individual decisions.

Reasoned Elaboration

The notion that judges must abandon the law to achieve the legally correct outcome assumes there’s only “one truth about what the constitution really means,” according to Fallon, the Harvard professor.

But Fallon says there are often many “true things the justices could say.”

Fallon thinks about legal legitimacy in terms of a kind of “reasoned elaboration model,” which allows social, moral, and legal legitimacy to coexist most of the time.

What seems to be characteristic of Roberts, he said, is that he seems to believe that there are good prudential reasons within a reasoned elaboration model to go one step at a time.

“If they go a step at a time, it’s more likely to keep the public generally satisfied that they are not just trying to reshape the law in view of their own ideological preferences,” Fallon said.