The political storm bearing down on the Supreme Court because it seems poised to overturn Roe v. Wade shows that the institution is losing “legitimacy,” or so its critics insist. But the coming decision could have the opposite effect and strengthen the court’s public standing.
Progressives and conservatives increasingly disagree about how that legitimacy has been built and maintained. One theory, seductive in an age of ubiquitous polling, is that legitimacy equals popularity. Progressive commentary on Dobbs v. Jackson Women’s Health Organization, the abortion rights case, tends to assume that a popular decision would enhance the court’s legitimacy, while a less-popular decision would erode it.
Modern conservatives are more likely to believe that the court is legitimate when it interprets the law strictly according to its text, irrespective of public opinion. This approach might not always make the court popular, but it yields decisions that are intellectually honest.
Who’s right? Besides Chief Justice John G. Roberts Jr., the justice who has thought most deeply about this question may be the retiring Justice Stephen G. Breyer. His 2021 Harvard lecture, “The Authority of the Court and the Peril of Politics,” challenges both progressive and conservative views of judicial legitimacy.
The court’s legitimacy is tested most, Breyer’s examples show, when it orders elected officials to take actions they oppose. The court would not be wise in those delicate cases either to blindly follow opinion polling or to adopt interpretations of the law so disconnected from political reality that they could be ignored. Instead, the court must practice a kind of realpolitik — selecting areas where it can have influence, and boxing the elected branches into compliance until it becomes a habit.
Breyer’s most poignant examples come from the civil rights era. Brown v. Board of Education (1954), which ordered the end of Jim Crow educational segregation, put the court’s legitimacy directly to the test. Three years later, Arkansas Gov. Orval Faubus (D) blocked the Little Rock Nine from integrating Central High.
President Dwight D. Eisenhower ultimately ordered the Army’s 101st Airborne to force Faubus and the Arkansas National Guard to stand down. “The parachutists took the nine brave black students by the hand and walked them into the formerly white school,” Breyer wrote. “So the court won this confrontation, did it not? It did, but it won with the cooperation of the President of the United States.”
The president’s intervention in such situations was not assured. That meant the court, lacking a “sword” of its own, had to weigh the public response to its rulings if it wanted them to amount to more than legal advice. The delay in striking down bans on interracial marriage until 1967’s Loving v. Virginia, according to Breyer, was “a calculated part of the Court’s enforcement strategy.”
If Justice Samuel A. Alito Jr.’s leaked opinion overturning Roe is the judgment of the court, it may be unpopular; we don’t know yet. It will certainly be controversial. But that controversy need not damage the court’s authority.
Breyer observed that Chief Justice John Marshall in Marbury v. Madison “strengthened the norm of judicial review” by ruling “in a way strategically designed to avoid the risk that the president would ignore what the Court ordered.” Overturning Roe would also be a high-profile use of judicial power that the elected branches couldn’t readily resist or nullify. After all, abortion policy would be decided by political majorities.
Justices Sonia Sotomayor and Elena Kagan both objected at the Dobbs oral argument that the court’s abortion jurisprudence was swinging rightward due solely to changes in its membership; Sotomayor questioned whether the court would “survive the stench.” But what is the alternative? For the court to change direction without a change in membership — as the New Deal-era court did under political pressure in 1937? That hardly suggests an independent or apolitical body.
Democratic rhetoric about an “illegitimate” or “stolen” conservative court majority may create the conditions for progressive elected officials to try defying the law in the future. But those efforts could only succeed in narrow circumstances — say, in an ultra-blue state inflamed by a ruling expanding gun rights or limiting racial preferences. The attorney general and president, unlike Eisenhower, would need to be complicit with the state-level radicals. Congress would need to be quiescent.
J.D. Vance, the Trump-endorsed favorite to be Ohio’s next senator, was quoted in Vanity Fair last month saying he would tell Donald Trump in a second term to imitate President Andrew Jackson’s defiance of the Supreme Court. Yet the court’s enhanced standing among conservatives, thanks partly to decisions like Dobbs, might make such a maneuver less likely to succeed.
Norms around the Supreme Court — broad Senate support for nominees, and now the secrecy of deliberations — have lost currency. But one reason partisans work so hard to control the court’s membership and influence the justices is their belief that rulings will be widely respected and difficult to defy. Rhetorical assaults on the court will continue, but progressives will be disappointed if they expect its authority to simply dissolve in the crucible of partisan fury.