It is perhaps telling that a panel of six scholars discussing the U.S. Supreme Court resorted to the word “legitimacy” nearly 40 times. And not in a good way.
Speaking only hours after polls across America closed in a fiercely contested midterm election shaped in part by the Court’s decision to limit abortion rights in Dobbs v. Jackson Women’s Health Organization, Maya Sen said that the Court has a polling problem of its own. “There’s no question that public approval of the Court is really at historic lows,” said Sen, a professor of public policy at the Harvard Kennedy School.
A historic 58% of Americans disapprove of the Court, Sen said, up from only 40% at the time of Ruth Bader Ginsburg’s death in 2020. Prior to Donald Trump’s election as president in 2016, just 20% of Americans said the Court was too conservative. By 2022, that number had jumped to 42%. But those views aren’t equally shared. Today, she said, 60% percent of Republicans approve of the Court, compared to only 36% of independents and 23% of Democrats. “So, there are really striking polarized patterns emerging,” Sen said.
But what explains the dramatic decline in the Court’s popularity with many Americans? According to surveys she has conducted, Sen said, the Court’s rapid ideological evolution is partially to blame. “[T]he Court really is not representative of the average American, but it’s actually now currently much more representative of the average Republican Party voter. And … that the shift to the right more or less happened when Amy Coney Barrett joined the Court. And that, in itself, overlaps with the large surge in disapproval of the Court.”
“[T]he Court really is not representative of the average American, but it’s actually now currently much more representative of the average Republican Party voter.
Maya Sen, a professor of public policy at the Harvard Kennedy School
Sen shared her analysis during a Harvard Law School panel on Nov. 9 titled “Reforming the Supreme Court.” It was the third in a yearlong lecture series examining “The Supreme Court in a Constitutional Democracy.” Introducing the panel, Harvard’s Antonin Scalia Professor of Law Stephen Sachs, who moderated the event, said, “With significant changes to the Court’s membership and increased attention to its role, the past few years have seen renewed calls for Court reform.” Proposals considered by a commission created by President Biden to study Supreme Court reform, he noted, ranged from the imposition of age or term limits, altering the method of appointing justices, to “packing the court by adding new justices to sway the content of its rulings.”
Cristina Rodríguez, a Yale law professor who co-chaired the Biden commission on which 16 Harvard Law faculty and alumni served, cautioned that it “was never conceptualized as something that would provide answers to current debates, much less to produce a call to action.” Instead, she explained, the commission focused on informing “people with power, which was not us, but members of Congress, potentially the president, what is at stake when it comes to thinking about how to reform the Court.”
While the commission didn’t achieve consensus on any specific reforms, Rodríguez said, its members did coalesce around three values that should be considered as part of the debate: “preserving and promoting legitimacy of the Court, … protecting judicial independence, and ensuring that what the Court does is consistent with our democratic system of government,” she said. “None of those has an obvious answer for what reforms to adopt. But they are ways in which to think about the reforms.”
Neil Siegel, a professor of law and political science at Duke University School of Law, said that he always starts by asking “why the Supreme Court matters … what’s its role in the constitutional scheme.” The answer, he said, includes sustaining the rule of law and ensuring the supremacy of federal over state law, as was as a uniform interpretation of the law. While he doesn’t think the Court performs any of these functions “especially well,” he argued that there isn’t a better alternative.
“My argument is not that the Court is doing a great job. In fact, I disagree with this Court much more often than I agree with it, and sometimes I disagree quite strongly,” he said. “But … critics of the Court often identify its failings without asking themselves which institution is likely to do better. … Is it Congress? Is it the average state legislature that we think is going to do a better job protecting racial and ethnic minorities, criminal defendants, prisoners, other vulnerable individuals and groups? And so, given my view that the Court in this country … performs very important functions, it’s important to sustain its legitimacy.”
“Critics of the Court often identify its failings without asking themselves which institution is likely to do better.”
Neil Siegel, professor of law and political science at Duke University School of Law
Siegel outlined several reasons he believes the Court has come under increased scrutiny recently, including Senate Republicans’ decision in 2016 not to consider President Barack Obama’s nomination of Merrick Garland, citing a presidential election eight months later, which he juxtaposed against their 2020 decision to confirm Donald Trump nominee Amy Coney Barrett, despite her having been nominated only two months prior to Biden’s election. Siegel also agreed with Sen that the Court’s “strikingly assertive” shift to the right, labelling is decision in Dobbs an “abnormal, astonishing, jaw dropping judicial performance.”
Although undecided on the merits of specific reform proposals, Siegel recommended several actions — “low-hanging fruit” — the justices themselves could undertake to better safeguard their public credibility. First, they could adopt a code of ethics. “It’s really not acceptable that they’re the only federal judges to whom an ethics code doesn’t apply,” he said. “They should adopt it themselves, and they should try in good faith to comply with it.” Second, be believes they should follow the example set by Chief Justice John Roberts and eschew opportunities to give “state of the movement speeches at the Federalist Society or the American Constitution Society.” Finally, they should decide fewer cases “by emergency order and more though the ordinary judicial process.”
University of Virginia School of Law Professor Richard M. Re pushed back on the notion that the Court’s decision to reverse previous precedents in its recent rulings in Dobbs and other cases is unusual, calling that diagnosis “a bit misleading and in some ways wrong.” According to Re, “precedent operates, I think, mainly as a permission, not so much as a constraint,” and it isn’t surprising that new justices with “different personal precedents or judicial ideologies” will see the law differently than their predecessors.
However, he said, the Court’s approach to precedent has changed in other ways. Until recently, he said, gradualism had been a hallmark of the Roberts Court, thanks in part to the chief justice and also to Anthony Kennedy, whom he replaced as Court’s most centrist member.
“But now, Justice Kennedy has retired, and the chief justice is no longer a median member or a necessary member of the conservative bloc on the court,” Re said. “And so, in Dobbs, it seems like we’ve witnessed the sudden demise of gradualism. And I think that’s lamentable for a number of reasons. I think gradualism in general is a very good way for the Court to proceed. And I do think that to some extent, the sudden demise of gradualism has fostered the impression that the Court is more political, and perhaps more in need of reform.”
“In Dobbs, it seems like we’ve witnessed the sudden demise of gradualism. … to some extent, the sudden demise of gradualism has fostered the impression that the Court is more political, and perhaps more in need of reform.”
Richard Re, professor at the University of Virginia School of Law
But, Re cautioned, several reforms currently under discussion could have harmful unintended consequences, particularly if justices continue to treat precedent as permissive and gradualism as antiquated. Consider term limits, for instance. If justices were regularly forced to retire and were replaced by new justices appointed by presidents from the opposite party, “what you might expect as a result of term limits is a lot of rapid seesaw zigzag changes, which would be quite bad for stability and predictability.” That outcome could be more problematic, he argued, than having a stable and predictable conservative majority.
The final panelist to speak, Rosalind Dixon LL.M. ’04, S.J.D. ’08, a professor of law at the University of New South Wales in Australia, approached the question from the perspective of comparative law, contrasting the U.S. system to those in other constitutional democracies. First, she said, amending the Constitution “is really the most difficult process in the world to achieve relative to countries that are peer democracies. And secondly, the U.S. Congress is much more polarized than most equivalent legislatures.”
In addition, many other nations make it easier for people to reverse unpopular decisions by their highest courts. “I think the thing that stands out most is that the Court is very, very entrenched in terms of the finality of its decisions relative to Article Five [of the Constitution] or any equivalent override provision. … Most countries allow either amendment or override in some form, by simple or fairly weak supermajority vote.”
“The Court is very, very entrenched in terms of the finality of its decisions relative to Article Five [of the Constitution] or any equivalent override provision. … Most countries allow either amendment or override in some form, by simple or fairly weak supermajority vote.”
Rosalind Dixon LL.M. ’04, S.J.D. ’08, a professor of law at the University of New South Wales in Australia
Dixon recounted her testimony to Biden’s Supreme Court commission, in which she commended the use of “suspended declarations of invalidity, meaning decisions that come into effect only after a period of time,” giving Congress and state legislatures opportunity to act accordingly. In the case of the Dobbs decision, she said, this approach would have enabled states to update their statutes to avoid century-old directives springing back into existence. “We cannot have 19th century laws governing access to abortion, whatever your views on that question,” she said.
Citing the justices’ lack of interference into investigations of the events of January 6, 2020, or the FBI’s seizure of documents at Donald Trump’s estate at Mar-a-Lago, she cautioned against being overly critical of the Court, warning that further diminishment of its perceived legitimacy could undermine its ability to safeguard basic democratic norms.
“We need to approach this with a view to empowering democratic politics and encouraging a more responsive Court,” she said, “but not further alienating a conservative Court into stepping away from its absolutely most fundamental function, which is to uphold the rule of law in a constitutional democracy.” Agreeing with Dixon, Re posited a Nixon-to-China analogy, noting that decisions like Dobbs might give the Court sufficient credibility with conservatives to support law enforcement actions involving former President Trump in a non-partisan fashion.
In response, Rodríguez pointed to testimony before the Biden commission by former Canadian Supreme Court Justice Rosalie Abella, who is currently a visiting professor at Harvard Law School. Abella, she recalled, had argued that “legitimacy depends on whether people like the results the Court is reaching. And everything flows from there.”
Echoing Re’s earlier comments, Rodríguez argued that Abella’s testimony reinforces the importance of the more gradualist approach for which the Court was known under the influence of Roberts and Kennedy and, previously, Justice Sandra Day O’Connor. “I think that is a maybe the most valuable dimension of gradualism,” Rodríguez said. “Even if you can see the arc reaching the same result in 20 or 30 years, I do think that it will tend to be done in a way that is less likely to lead people to think that we can’t trust the Court at all.”
Duke’s Siegel said the current Court’s recent slip in the polls is the result of the counter-majoritarian process by which it was constituted. “[F]or the first time in American history … we had a president who lost the popular vote successfully nominate three people in four years to the Court that were confirmed by a Senate majority representing a minority of the nation. So, it’s not like it should be some great mystery why we have a Court that is out of step with where a majority or a supermajority of the of the country is.”