The Sociological-Legitimacy Difficulty

Abstract

While the US Supreme Court’s normative legitimacy problems, and especially the countermajoritarian difficulty, have received wide scholarly attention, only scant scholarly attention has been paid in recent decades to the Court’s problems with its descriptive or sociological legitimacy. The sociological-legitimacy difficulty captures the Court’s inability to sustain its sociological legitimacy if the public perceives it as unconstrained by the law and deciding cases according to the Justices’ own political opinions. By the 1940s, the understanding that law’s malleability allows judges to decide cases based on their political preferences was already widespread, and it has been spreading ever since. While several scholars claim that the sociological-legitimacy difficulty is fictitious, I show that it very much affects Supreme Court’s adjudication. The effects of this difficulty are not restricted merely to prudence on the part of the Court in face of potential public backlash, but extend to areas such as judicial choice of interpretative method.

Keywords: sociological legitimacy, indeterminacy, countermajoritarian difficulty, originalism