The Supreme Court's Legitimacy Dilemma

38 Pages Posted: 23 May 2019 Last revised: 12 Jun 2019

Date Written: April 17, 2019

Abstract

The past few years have not been good for the Supreme Court. In the wake of divisive confirmation battles, there are cries that the Court is no longer a “legitimate” institution and growing calls for court-curbing measures like jurisdiction stripping, impeachment, and—most commonly—“packing” the Court with additional members. This Essay, which reviews Richard Fallon’s Law and Legitimacy in the Supreme Court, takes stock of these attacks on the Court. Building on Fallon’s work, as well as political science research and history, the Essay argues that in politically charged moments like today, the Justices may face a dilemma. In order to preserve the Court’s public reputation (its sociological legitimacy)—and thereby stave off court-curbing measures—one or more Justices may feel pressure to modify their constitutional jurisprudence. That is, some Justices may sacrifice the legal legitimacy of their decisions in order to save the Court as a whole. This recurring tension—between sociological and legal legitimacy—is the heart of the Supreme Court’s legitimacy dilemma.

Keywords: Supreme Court, Legitimacy, Separation of Powers, Judicial Appointments, Court Packing, Jurisdiction Stripping, Impeachment

Suggested Citation

Grove, Tara Leigh, The Supreme Court's Legitimacy Dilemma (April 17, 2019). The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240 (2019) (invited essay)(reviewing Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)). Available at SSRN: https://ssrn.com/abstract=3373969

Tara Leigh Grove (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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