Watching the Watchmen

Is the U.S. Supreme Court in crisis? Christopher W. Schmidt on the emerging politics of the American judiciary. ‘Zero Legitimacy’ Is the U.S. Supreme Court in crisis? Christopher W. Schmidt on the emerging politics of the American judiciary. A growing number of Americans disapprove of the U.S. Supreme Court, which is returning to the center of their national politics this year as President Joe Biden chooses a nominee to fill retiring liberal Justice Stephen Breyer’s seat and the Court’s 6-3 conservative majority is poised to overturn the landmark abortion-rights decision Roe v. Wade. Earlier this month, the Pew Research Center [reported]( that Americans’ view of the Supreme Court is “as negative as it has been in many years.” (The Pew survey, conducted before Breyer announced his retirement, found that 54 percent of U.S. adults still had a favorable view of the Court, but a Gallup poll last September showed [just 40 percent]( low point since 2000.) The Court is facing perceptions of partisanship, with even a member of the Court, the liberal Justice Sonia Sotomayor, herself recently asking whether the institution would survive “the public perception that the Constitution and its reading are just political acts.” All of this has led to a growing public debate in America about the Court’s legitimacy—even talk of a “legitimacy crisis.” Is there one? Christopher W. Schmidt is a professor at the Chicago-Kent College of Law, a co-director of the school’s Institute on the Supreme Court of the United States, and the author of an upcoming book about the Court’s relationship with the American public over the last century. As Schmidt sees it, the institution isn’t anywhere near a real legitimacy crisis, because he sees a real legitimacy crisis as meaning mass defiance of the Court’s rulings. While overturning Roe would be controversial and consequential, Schmidt says, he won’t expect it to change the American public’s fundamental sense of the Court’s legitimacy—though the impact of such a ruling might be magnified by big victories for conservative opinion in upcoming cases on affirmative action, guns, and voting rights. At the same time, he says, the Court has become a more prominent political issue in U.S. elections than it was a decade ago—or than it’s been through most of U.S. history. This shift might make the Court more divisive, Schmidt says, but it will also help prevent it from seeming irrelevant to people’s lives. ——— Graham Vyse: To start with, what does it mean for the Court to have legitimacy in America? Christopher W. Schmidt: The default meaning of legitimacy, as people tend to use the word in the media and most popular discussions—particularly with these concerns about a crisis—has to do with public opinion: Do people approve of or have faith in the Supreme Court? The Court has typically had an approval rating of 50 or 60 percent during the past two decades. You may have seen a lot of references to polling last fall, showing Court’s approval rating as being historically low—down to about 40 percent in some polling—if still nowhere near as bad as approval ratings for Congress. There are also legal and moral definitions of legitimacy. A lot of people on the political left are attacking the Court in strong terms right now, saying it’s acting in an illegitimate way. They’re not just saying it’s hurt its opinion polling; they’re saying it’s doing things wrong—abandoning legal precedent, using inappropriate legal interpretation, being too influenced by partisanship. Vyse: Do you think the Court is facing a legitimacy crisis? [Advertisement]( Advertisement Schmidt: No—and I realize that’s a little against the grain. A lot of people in America think the Court is either in a legitimacy crisis or on the cusp of one. There’s some ideological division on that question. Liberals are more likely to say it’s facing a legitimacy crisis than conservatives are. There’s an assumption that really high public-opinion polling is good for the Court as an institution. I’m not sure. If the Court wanted to increase its approval ratings, it could issue some patriotic rulings here and there, try to split differences, and not be in the public consciousness as much. But we don’t want a U.S. Supreme Court that would do what’s needed to have an 80 percent approval rating. We want a one that can intervene on certain issues in ways that may be very unpopular at the time. Brown v. Board of Education [the 1954 Court decision establishing that racial segregation in public schools was unconstitutional] was extremely unpopular with the white population of the American South. Of course, it was the right decision. I feel confident that Obergefell v. Hodges, the 2015 decision establishing the right to marriage for same-sex couples, is going to go down in history as a great decision. And it polls fairly well now. But at the time it was divisive. More from Christopher W. Schmidt at The Signal: “Historically, at least over the past few decades, Republicans and conservatives have liked the Court less than Democrats and liberals have. Much of the Court’s strength in public opinion has come from people on the political left approving of its actions—even though many look at the Court during the same period and see it as conservative in some ways. It’s certainly been dominated by Republican appointees. Still, Republicans have been less satisfied with it. Democrats have become more disillusioned recently, while Republicans have come to like it more—if not as much as you might think, given its six Republican appointees among nine justices.” “Denunciations of the Court in extremely strong terms, including from prominent politicians, aren’t new. The frequency of these statements might be increasing, but in the past, someone might say something about the Court, but then they’d tend to move on to other things. We’ve been in a moment for the last five to ten years when politicians have seen an increasing value in talking about the Court, often in attacking it, and in doing that more consistently and directly. Political parties, especially the Democrats right now, are feeling that they can start running campaigns about the Court and using it for fundraising efforts. You have massive public-interest groups focused primarily on courts, court appointments, and court reform.” “Overturning Roe v. Wade would be a dramatic moment with a sharp effect. The anger with the Court on the left would be stronger than the embrace of it on the right. It would probably hurt the Court, but what will happen next? I don’t think the Court is going to become illegitimate all of a sudden. But if it then issues a number of other decisions, all of which seem to favor one ideology or one political party—say affirmative action is struck down, gun rights are dramatically expanded, and voting rights are cut back—then that could be seen as a trend and cause people to lose faith, particularly people on the left side of the political spectrum.” ——— ——— [The Signal]( is a digital publication exploring vital questions in democratic life and the human world, sustained entirely by readers like you. 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