The Changing Understanding of Judicial Legitimacy
in Judges as Guardians of Human Rights and Constitutionalism (Martin Scheinin, Helle Krunke & Marina Aksenova eds., Edward Elgar Publishing 2016) 50-70.
16 Pages Posted: 1 Jul 2019
Date Written: May 1, 2016
One of the most important moments in the history of the US Supreme Court occurred outside of the Court with the invention of public opinion polling. As opposed to the prevailing narrative that presents the relationship between the Court and public opinion throughout history as a structurally unchanged relationship, I argue that the invention of public opinion polling brought a conceptual change in how judicial legitimacy is understood. This change remains hidden in plain sight. It is hidden because many of the terms used when discussing judicial legitimacy have remained constant, while their meaning has changed significantly. In this chapter, I offer a succinct analysis of the origins of this change and its manifestations in the US, alongside a brief discussion of how this change has begun to travel to other legal systems.
Until the invention of public opinion polls, no source of data could give direct, regular, and reliable measurements of public opinion apart from elections. As a result of the arrival of public opinion polls, elected representatives have lost their monopoly on the claim to legitimacy based on public support. Since the 1960s, public opinion polls for the first time in history have routinely measured the American Supreme Court’s public support and demonstrated it publicly. From that point on, judicial legitimacy could be understood in terms of public support.
This technological change, together with an ongoing decline in the belief in legal expertise, has brought a shift in the understanding of judicial legitimacy. This shift has many manifestations. Two of them are discussed in this chapter. First, I discuss how Alexander Hamilton’s famous dictum from the Federalist No. 78 has been paraphrased in recent decades to fit the new understanding of judicial legitimacy. Second, I show that the countermajoritarian difficulty that was created to address the problem of accountability has been transformed to capture the difficulty in countering public opinion.
Ideas travel and in the second part of this chapter, I demonstrate how the shift in the understanding of judicial legitimacy has migrated both to judicial and scholarly writing outside the US. First, I focus on how the Israeli Supreme Court imported the new American understanding of judicial legitimacy into its adjudication. Second, I examine a recent monograph written on the South African Constitutional Court that explores its work according to the understanding that judicial legitimacy equates to public support for the court.
Keywords: US Supreme Court, Legitimacy, Hamilton, the countermajoritarian difficulty, Israeli Supreme Court, South African Constitutional Court
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