'Lawyers’ Work': Does the Court Have a Legitimacy Crisis?

Abstract

Talk of the Supreme Court’s legitimacy is in the air. Indeed, it is almost unavoidable. Critics argue that the Court is in danger of being perceived by the public as illegitimate. Is that true? And if so, what consequences would likely follow? This article will address the question of the Court’s legitimacy in the present political context. After a brief introduction, it will discuss the concept of institutional judicial legitimacy as it has come to be understood by political scientists. Then building on Justice Scalia’s dissent in Planned Parenthood v Casey, it will briefly discuss those methodologies that Justice Scalia referred to as “lawyer’s work,” the analytical techniques that the justices have traditionally relied on to interpret the Constitution. Then the article will engage in an extended review of several periods in its history in which the Court’s legitimacy with the public was questioned. It will be argued that often, though not always, the Court was able to preserve its legitimacy through the engagement of what Justice Scalia characterized as “lawyer’s work.” Finally it will be argued that when the public seriously questions the Court’s legitimacy, the constitutional check provided through the appointment and confirmation authority has slowly but surely resolved the crisis. The article will maintain that recent changes to the Court’s composition are simply one more example of the political system employing the constitutionally based appointment and confirmation process to address public dissatisfaction with the Court. The cries of illegitimacy are little more than an anguished response to this change.

Keywords: U.S. Supreme Court; legitimacy; institutional judicial legitimacy; public opinion; constitution; political system