Legitimacy is one of the few words in the dictionary that is always under defined. 

            Oxford says it means, “Conformity to the law or to rules.” It can’t be both. The law is infinitely different from mere rules.

            Merriam-Webster says it is, “The quality or state of being legitimate.” Legitimacy should not suffer such minimization as quality of this or that state of something.  

            Cambridge Dictionary says it’s a noun meaning the “Quality of being Legal.” That borders on absurd. Legality, like legitimacy, is not a “quality.” How could legitimacy be reduced to a quality of anything?

            I don’t have a Funk and Wagnalls anymore; it died in 1997. Besides it was an encyclopedia not a dictionary. So, we have to go elsewhere for meaning.

            The Princton Encyclopedia of Self Determination gets closer to an understandable definition by saying, “Legitimacy is commonly defined in political science and sociology as the belief that a rule, institution, or leader has the right to govern. It is a judgment by an individual about the rightfulness of a hierarchy between rule or ruler and its subject and about the subordinate’s obligations toward the rule or ruler.”[1] As an aside, I have to say this is fascinating because Princton, one of the U.S.’s very best universities, doesn’t have a law school. Maybe that’s why they assign the word to political science or sociology. What’s law got to do with legitimacy? Or vice versa? If we follow the Princeton protocol, SCOTUS has the right to determine what is lawful, what is constitutional, and by extension, what is “legitimate.”

            Madame Wikipedia is in the same camp as Princeton University—it defines, refines, and reports on legitimacy in terms of political science, and moral philosophy. She believes John Locke, the British social philosopher, got it right. “Political legitimacy derives from popular explicit and implicit consent of the governed.” And she goes for the jugular by quoting the American political sociologist Martin Lipset. “Legitimacy involves the capacity of a political system to engender and maintain the belief that existing political institutions are the most appropriate and proper ones for society.”[2]

                Trust is a wonderful metaphor for legitimacy. So long as institutional trust is at a given level political satiability is maintained, if it falls below the required level, political legitimacy is endangered. When it comes to SCOTUS, its reservoir of public trust stems from our belief that it is a legitimate institution. Because it is THE Supreme Court, it has both the power and the constitutional right to make law. When it veers away from law and starts to flounder in politics, we will question its legitimacy.    

            U.S. Supreme Court Justice Elana Kagan recently spoke to the issue of SCOTUS’s legitimacy.[3] She said, “As a sharply divided U.S. Supreme Court prepares to begin its next term in less than a month, the judicial system loses legitimacy when judges are perceived as political actors rather than fair arbiters of the law. If we go around doing politics, doing policy, imposing our personal preferences on people— why should anybody accept that? Nobody elected me and the only reason that people should accept what judges do is because they’re doing law . . . [we’re] doing something we were put there to do. So, I think judges create legitimacy problems for themselves—undermine legitimacy—when they don’t act so much like courts, and they do things that aren’t recognizably law, and they instead stray into places where they look like extensions of the political process.”

            Justice Kagan also talked about overruling Roe v Wade, calling the leak of that decision a “horrible thing from the perspective of judicial decision making. It’s such an obvious violation of the court’s rules and court’s norms.”

            U.S. Chief Justice John Roberts defended the authority of the Supreme Court to interpret the Constitution, saying its role should not be called into question just because people disagree with its decisions.[4] He is obviously and understandingly concerned about the court’s stunning reversal of Roe v. Wade. He said he was concerned that lately some critics of the court’s controversial decisions have questioned the legitimacy of the court, which he said was a mistake. He did not mention any specific cases or critics by name.

            He holds an official title that very few people use. He is not the “Chief Justice of the United States Supreme Court.” He is the Chief Justice of The United States.”[5] The difference is profound. There are at least one-hundred-fifty supreme court justices in the US. There are at least fifty chief justices—one in every state. But there is only one chief justice of the country. His comments and views are the voice of America, not just our federally ordained Supreme Court. He said, “If the court doesn’t retain its legitimate function of interpreting the constitution, I’m not sure who would take up that mantle. You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide about what the appropriate decision is. . . I don’t understand the connection between the opinions people disagree with and the legitimacy of the Supreme Court.”[6]

            That’s precisely why writers need to be cautious about the ethics of questioning the legitimacy of the U.S. Supreme Court. As far back as 1952, lawyers understood there is a moral element in U.S. Supreme Court decisions. Legal scholars for at least the last seventy years have posed the right ethical question; Does the United States Supreme Court decide cases on the basis of moral and ethical value judgments?[7] Professor Samuel E. Stumpf answered that question in his lengthy essay published in the Vanderbilt Law Review.[8]

“Indeed, a reading of the Supreme Court decisions for the past twenty years reveals a manful resistance on the part of the judges to intrude their moral and ethical judgments into their decisions; and their resistance is grounded on the double barrier of states’ rights and congressional prerogative. . . Yet, there is a persistent belief that law finds its deepest validation in its conformity with moral and ethical values and principles. As the highest organ of law in our society, the Supreme Court cannot avoid confronting from time to time this moral dimension of law. Wherever the destinies of men are involved a decent respect for their reason and conscience demands rationally articulated decisions in controversies.”

            That said, there is an enormous difference between what the court itself does and what individual justices do when they cast their vote in conference. At least from a surface view, we have some individual justices whose religious obligations seem to sway them in different directions. The reversal of  Roe v. Wade might be a sterling example. In its Dobbs decision the court reversed seventy-year-old precedent and established a new wave of abortion denial across a minority of  states—the view of the approving justices and the politics of those anti-abortion states are symbiotic. Justices should not use their personal religious or moral views as a basis for ignoring precedent. Traditionally, justices have not used morality, religion, or political preferences in casting votes—by and large they use legal principles, not ethical ones.

            Surprisingly, the nine justices on the current Supreme Court are the only judges in the country that are not governed by a code of ethical conduct. The unalterable fact that large swaths of citizens in every state supported abortion in the first trimester seemingly did not include the six justices who combined to overrule Roe v. Wade. The behavior and commentary of conservative justices has occasionally been criticized.[9] Congress is apparently aware because the House of Representatives passed the For The People Act in March 2019. Since then both Republican and Democratic legislators have moved to “clarify” the ethical standards at SCOTUS.

            Not surprisingly, President Biden signed the bipartisan “Courthouse Ethics and Transparency Act” into law in May 2022. It relates to the effort to make court financial data open and accessible to the public, enhancing transparency and accountability in the federal judiciary.[10] This new law does not apply to SCOTUS judicial conferences or any direct ethical norm for using or failing to recognize moral or ethical dilemmas in reversing precedent or moderating accusatory language in court opinions. Lower ranked federal judges do have a Code of Conduct that includes ethical canons applicable to lower federal courts and provides guidance on the performance of official duties, including dealing with other judges on the court.[11]  

            The Guardian newspaper put the legitimacy issue on page 1. “As of 24 June 2022, the U.S. Supreme Court should officially be understood as an illegitimate institution. [It] is a tool of minority rule over the majority, and as part of a far-right ideological and authoritarian takeover that must be snuffed out if we want American democracy to survive. . . It overturned Roe v Wade . . . It is difficult to overstate just how devastating this is for pregnant people, for women as a class, and for anyone with a passing interest in individual freedom and equality.”[12]

            Harvard Law School released a book review with a stunningly direct title; “The Supreme Court’s Legitimacy Dilemma.”[13] This came out in June of 2019, long before the Roe v. Wade bomb was dropped.  

            Current Affairs was equally blunt. “The Supreme Court Has Destroyed Its Legitimacy and There is No Reason to Respect It.”[14] Its reasoning was narrowly focused on the justices making up the “conservative majority.” Like many other 2022 sources it aims at individual justices rather than the court itself.

            Gallup.com reported on June 23, 2022, that its historic polling confirms “Confidence in U.S. Supreme  Court Sinks to Historic Low.” Its numbers show that 25% of Americans have confidence in the Supreme Court, down from 36% in 2021. Its current reading is five percentage points lower than prior record low. And confidence is down among Democrats and independents in 2022.[15]

            ABC News reported on September 6,  2022, “The Supreme Court’s Dramatic Rightward Turn May Undermine Its Political Distance.” In support of the headline, it cited analysts who say the court’s legitimacy erodes when it splits from the mainstream.”

            Most media outlets, like most Americans reacted to Justice Alito’s hostility in authoring the conservative’s minority position in a bare majority opinion. He said, “Roe has remained bitterly divisive for the past century.”  It has not. Almost every poll taken shows that at least 58% of Americans believe abortions be legal in all or most cases.[16] What is clear is that the political shift on the Supreme Court’s right wing is listening to its political side and ignoring its legal side. It does so at its peril and at our national loss. We need a vibrant Supreme Court that does not allow religion to enter its debate so blatantly.

            Linda Greenhouse has long been an authority on SCOTUS. She says that for many years she labeled SCOTUS cases by category—criminal law, administrative law, speech, federalism and so on. One of her main categories was abortion. But now, she says she has been putting abortion in the wrong place. She says abortion cases ought to be categorized under the more accurate term, religion. Her reasoning is sound and her perception on point.

Does anyone really think it was motivated by disapproval of the court’s reliance in Roe v. Wade on substantive due process, an interpretation of the 14th Amendment that accords meaning to the word “liberty” in the due process clause? Is there anyone who believes that if only the Constitution had included the word “abortion,” the anti-abortion movement would have failed to gain political traction? . . . the Dobbs majority treated the absence of the ‘A-word’ in the Constitution as nearly fatal to Roe all by itself, it is worth observing that the Constitution’s 7,600 words, including its 27 amendments, contain neither the word “fetus” nor “unborn.” No one really buys the argument that what was “egregiously wrong” with Roe v. Wade, to quote the Dobbs majority, was the court’s failure to check the right analytic boxes. It was not constitutional analysis but religious doctrine that drove the opposition to Roe. And it was the court’s unacknowledged embrace of religious doctrine that has turned American women into desperate refugees fleeing their home states in pursuit of reproductive health care that less than a month ago was theirs by right.

            Justice Alito argued the majority’s decision was pure legal reasoning. And he said the majority stood above the fray of American’s sharply conflicting views on the profound moral issue of abortion. But, as Linda Greenhouse reported, “The assumption that the moral gravity of abortion is singular and self-evident gives way more than the members of the majority, all five of whom were raised in the Catholic Church may have intended.”

            If indeed there is a shift in SCOTUS’s legitimacy, we will likely see deeper shifts as long as the current majority focuses on religion and not law.  

[1] https://pesd.princeton.edu/node/516

[2] https://en.wikipedia.org/wiki/Legitimacy_(political)

[3] https://apnews.com/article/us-supreme-court-elena-kagan-government-and-politics-55227b14975d1c6266eab8712c0dd482

[4] https://www.npr.org/2022/09/10/1122205320/chief-justice-john-roberts-defends-the-supreme-court-as-peoples-confidence-waver

[5] https://supremecourthistory.org/supreme-court-justices/chief-justice-john-g-roberts-jr/

[6] https://www.coloradopolitics.com/courts/chief-justice-roberts-deems-it-mistake-to-question-supreme-courts-legitimacy-based-on-decisions/article_6b4be52a-30ab-11ed-becb-57161204e5e1.html

[7] https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=4485&context=vlr

[8] Samuel E. Stumpf, “The Moral Element in Supreme Court Decisions” Vanderbilt Law Review, Volume 6, Issue 1—December 1952.

[9] https://www.brennancenter.org/our-work/research-reports/supreme-court-ethics-reform

[10] https://www.datacoalition.org/blog/12821843

[11] https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf

[12] https://www.theguardian.com/commentisfree/2022/jun/25/us-supreme-court-illegitimate-institution

[13] https://harvardlawreview.org/2019/06/the-supreme-courts-legitimacy-dilemma/

[14] https://www.currentaffairs.org/2022/06/the-supreme-court-has-destroyed-its-legitimacy

[15] https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx

[16] https://abcnews.go.com/Politics/supreme-courts-dramatic-rightward-turn-undermine-political-distance/story?id=85460463

Gary L Stuart

I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.

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