For this reason, academics often characterize the court as “counter-majoritarian,” meaning that it has the power to stand against the majority of the public sentiment in setting policy. But as counter-majoritarian as the Supreme Court is by design, it could get even worse. This term, the court will review cases pertaining to weighty topics ranging from LGBTQ rights to protections for undocumented immigrants brought to the United States as children. By the end of next summer, we will have a glimpse into just how undemocratic the new conservative majority on the court is willing to be.
The court’s relative lack of democratic credentials does not mean it is illegitimate. Beyond its constitutional grounding, it has sociological legitimacy, referring to the court’s ability to arrive at results that are generally accepted by the public at large. The court can also claim some moral legitimacy as it meets a minimal threshold of morality and justice.
That doesn’t mean the court should follow public opinion or morality in every case. Some laws, like the First Amendment, are designed to limit the force of public opinion. Flag burning might be publicly unpopular, but the First Amendment still prohibits the government from censoring speech it finds disagreeable.
In other cases, however, the law is less clear, and, in politically fraught cases, the court has reason to not push the limits of public opinion. For while the court draws its power from the Constitution, it has less power than the other branches of government. It can’t spend money on its own, as can Congress, nor can it deploy troops to enforce its judgments, as can the president. If the public turns against the court, it has little power to hold the other branches in check.
Several cases this term will test the limits of the court’s sociological legitimacy, potentially weakening the court as a legitimate institution in the process. Consider the Title VII cases, which ask the court to decide whether employers can fire their employees for being gay, lesbian, bisexual or transgender. More than 90 percent of Americans believe gays and lesbians should have equal rights in job opportunities; more than half believe that discrimination against the LGBTQ community is a major civil rights issue.
Or take the cases involving the president’s rescission of the Deferred Action for Childhood Arrivals program. More than 80 percent of Americans want DACA beneficiaries (known as “dreamers”) to be protected. Or consider June Medical Services v. Gee, the new court’s first abortion case. More than half of Americans describe themselves as pro-choice; many more say they support the court’s decision in Roe v. Wade, which recognized a constitutional right for women to end their pregnancies.
And yet, it’s unclear public sentiment will win in any of these cases, potentially sacrificing some of the court’s sociological legitimacy in the process. Depriving people of their rights, after all, is unpopular. That may be why the Trump administration is trying to rely on the courts and the law to achieve these policy outcomes. In the DACA cases, for example, the president has maintained that he supports protections for the dreamers as a matter of policy, while his homeland security secretary justified ending the DACA program on the grounds that the law forced her to do so. Knowing that it cannot defend its policies on the merits, the administration wants the court to take one on the chin for it.
But that dirty work comes at a price, especially since the deeply unpopular positions happen to be based on quite weak arguments about the law. For example, in the recent oral argument in the Title VII cases, Justice Neil M. Gorsuch observed that when an employer fires “a man who liked other men” or a woman who is assigned male sex at birth, the employer is firing the employees because of their “sex.” That is precisely what Title VII prohibits, which means the case should end as a victory for the employees. Yet that didn’t stop Gorsuch from questioning whether the justices should consider “the massive social upheaval” that might result from a decision that protects LGBTQ rights.
And regarding the DACA cases, the newest justices have repeatedly emphasized how important it is for administrative agencies to meticulously observe legal processes and to methodically justify their decisions. Yet when then-acting Homeland Security secretary Elaine Duke rescinded DACA, she relied on a memo from then-Attorney General Jeff Sessions that contained several glaring errors, including misstating the reasoning and conclusion of relevant judicial decisions. Will conservatives on the court recognize those missteps?
The public may be able to see through flawed arguments and bad legal logic. At a minimum, they can tell when Supreme Court decisions run counter to public opinion. If the justices are not careful, the American people will see an undemocratic institution becoming even more undemocratic. That would be bad for the court; it would be worse for the country.