Sacrificing Legitimacy in a Hierarchical Judiciary

Abstract

Scholars have long worried about the legitimacy of the Supreme Court. But commentators have largely overlooked the inferior federal judiciary—and the potential tradeoffs between Supreme Court and lower court legitimacy. This Essay aims to call attention to those tradeoffs. When the Justices are asked to change the law in high-profile areas—such as abortion, affirmative action, or gun rights—they face a conundrum: To protect the legitimacy of the Court, the Justices may be reluctant to issue the broad precedents that will most effectively clarify the law—and thereby guide the lower courts. The Justices may instead opt for narrow doctrines or deny review altogether. But such an approach puts tremendous pressure on the lower courts, which must take the lead on the content of federal law in these high-profile areas. Presidents, senators, and interest groups then zero in on the composition of the lower courts—in ways that threaten the long-term legitimacy of the inferior federal judiciary. Drawing on political science and history, this Essay explores these legitimacy tradeoffs within our federal judicial hierarchy. To the extent that our legal system aims to protect the legitimacy of the judiciary, we should consider not simply the Supreme Court but the entire federal bench.

Keywords: legitmacy, judicial hierarchy, judicial appointments, minimalism, passive virtues