The Supreme Court’s Legitimacy Dilemma

Abstract

The past few years have not been good for the Supreme Court. In the wake of divisive confirmation battles, there are cries that the Court is no longer a “legitimate” institution and growing calls for court-curbing measures like jurisdiction stripping, impeachment, and—most commonly—“packing” the Court with additional members. This Essay, which reviews Richard Fallon’s Law and Legitimacy in the Supreme Court, takes stock of these attacks on the Court. Building on Fallon’s work, as well as political science research and history, the Essay argues that in politically charged moments like today, the Justices may face a dilemma. In order to preserve the Court’s public reputation (its sociological legitimacy)—and thereby stave off court-curbing measures—one or more Justices may feel pressure to modify their constitutional jurisprudence. That is, some Justices may sacrifice the legal legitimacy of their decisions in order to save the Court as a whole. This recurring tension—between sociological and legal legitimacy—is the heart of the Supreme Court’s legitimacy dilemma.