The Supreme Court of the United States is now “illegitimate,” according to no less an established figure in the American political system than the chairman of the Democratic Party, Jaime Harrison. The Democratic congresswoman Alexandria Ocasio-Cortez said the same through a megaphone to protesters on the Court’s steps, while the Democratic senator Ed Markey described it as having been captured by a “stolen, illegitimate, and far-right majority.” They all belonged to a national chorus responding to the Court’s decision last month in Dobbs v. Jackson Women’s Health Organization, which overturned 1972’s Roe v. Wade and ended the constitutional right to an abortion in America. Yet as their rhetoric indicates, the criticism isn’t just of the legal reasoning in one high-profile case; it’s of the Court as an institution facing a “legitimacy crisis,” as public confidence in its performance has dropped to a historic low. What’s happened?
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 a forthcoming book on the Court’s relationship with the American public over the last century. In Schmidt’s view, the Court isn’t yet in a true legitimacy crisis. That, he says, wouldn’t come from low poll numbers, or public backlash alone, but from deeper problems that we haven’t yet seen fully bear out. At the same time, Schmidt thinks the institution is closer to a crisis than it was before this summer’s rulings—especially the Dobbs ruling—noting that there’s more “illegitimacy talk” about the Court than there’s been at any time in the past two decades. As he sees it, Dobbs has spurred a moment of progressive activism in the U.S., but it’s unclear how the decision will affect American politics—especially with progressive activists and the Democratic Party unable to align on a coherent or unified strategy in their response to date. Schmidt thinks the conservative justices may even believe that overturning Roe will serve the Court’s legitimacy, in the end, righting what they see as a legal wrong and distancing the justices from what they know is a divisive issue. The plausibility of that belief suggests how little agreement there may be, in the current political environment, on what would make the Court legitimate in the first place.
Graham Vyse: What were the Court’s most significant decisions this term, beyond Dobbs?
Christopher W. Schmidt: This was a hugely eventful term for the U.S. Supreme Court. Most of its big decisions went in the same ideological direction: Conservatives won and liberals lost. One of them, West Virginia v. Environmental Protection Agency, concerned the U.S. Environmental Protection Agency—the EPA—and how much discretion administrative agencies have. Conservatives on the Court, led by Justice Neil Gorsuch, have argued that these agencies have been exercising too much discretion and that Congress ought to be clearer in the directions it gives them. In West Virginia, the six-justice conservative majority struck down an EPA action, saying it went beyond what Congress empowered the agency to do through legislation.
There were also two big cases related to religion.
The first was Kennedy v. Bremerton School District, which concerned a high-school football coach who prayed at the 50-yard line after games, sometimes along with students. The six-justice conservative majority ruled that this coach had a right to pray and that his school district had been wrong to punish him for praying. It’s part of a trend in which the Court’s conservatives have been recognizing religious-liberty rights that hadn’t previously been recognized or expanding them.
The other was Carson v. Makin, which had to do with school funding. The state of Maine has a policy to fund education expenses for students who live in school districts without their own public high schools. Most of those students go to public schools in other districts, but some want to use the funds to go to religious schools. Maine prohibited the use of the funding for religious schools, but the Court ruled that such a prohibition violated the free exercise of religion, discriminating against students choosing religious schools.
Finally, there was a big gun case. To give you some context, the Court declined to rule on the Second Amendment to the U.S. Constitution, which speaks of a right to bear arms, for 200 years. Then, with its ruling in District of Columbia v. Heller in 2008 and a follow-up case in 2010, it said the Second Amendment protects an individual’s right to have an operable handgun at home for the purposes of self-defense. This term, with New York State Rifle & Pistol Association Inc. v. Bruen, the Court expanded Second Amendment rights.
The background for that case is that most states in the U.S. have licensing policies for people who want to carry guns outside their homes for the purposes of self-defense, and the default assumption is that an individual has a right to carry a concealed weapon, though there are some exceptions to that rule. A minority of states, including New York, enacted policies with a different presumption: They weren’t going to issue you a concealed-carry permit unless you had a good reason for wanting one. It wasn’t enough to say you felt unsafe in your neighborhood. It needed to be a specific reason such as someone threatening you. Gun-rights advocates challenged New York’s policy, saying the state shouldn’t be so quick to deny these permits, and in Bruen, the Court sided with the challengers, ruling that the policy violated the Second Amendment. This expanded the Heller decision; the right to bear arms now extends beyond the home into public spaces. States like New York and California will have to revise their policies, presumably leading to more people with guns in public as a result.
There’s no reason to think we won’t continue to see polls showing public confidence in the Court in the area of a record low. Does that mean there’s a legitimacy crisis, though? A lot of reporters certainly think so. But I don’t figure low poll numbers alone indicate a legitimacy crisis.
Vyse: Appreciating that the Court now has a conservative majority, it’s not surprising that it would arrive at conservative decisions. Do you see any other notable patterns in its rulings?
Schmidt: It’s important to understand the particular kind of conservatism that prevailed at the Court in this term—an ideological conservatism aligned with the current Republican Party. While the Court has moved aggressively in the direction of this ideological conservatism, some might argue this term was very un-conservative, based on older definitions of the word conservative. For many generations, going back to the 1950s and 1960s, the conservative position was that the Court should do less—to respect precedent and be incrementalist. Chief Justice John Roberts comes closest to embodying this view today. He’s trying to uphold a version of conservatism that just doesn’t have the votes now.
Another pattern I see is in the Court’s mode of legal analysis. In many of these cases, the Court spent a lot of time looking at history. Part of that approach is Originalism—the idea that you should interpret the text of the constitution based on its original meaning—and part of it is looking at which deeply rooted traditions in society are protected by the constitution’s due-process clause. There’s a lot of fighting over history—a lot of historians have criticized the Court, saying it’s misreading and misusing history—but it often uses history to justify and legitimate transformative changes in the law.
Vyse: Back in February, you argued that the Court isn’t facing a legitimacy crisis—at least not yet. But there’s a fair amount of mainstream conversation in the U.S. about the Court being illegitimate. How are your thoughts developing?
Schmidt: I’ll confess, this is something I’ve been struggling with—trying to figure out what’s going on. What does it mean for the Court to have a legitimacy crisis? Many people say it's facing one back that up by citing public-opinion polls. Public approval of the Court has been declining. When the draft Dobbs decision leaked, some people thought the decision was illegitimate, plus the Court wasn’t supposed to have leaks. So it wasn’t acting the way it was supposed to act. There’s no reason to think we won’t continue to see polls showing public confidence in the Court in the area of a record low. Does that mean there’s a legitimacy crisis, though? A lot of reporters certainly think so. But I don’t figure low poll numbers alone indicate a legitimacy crisis.
I’m also struggling with the question of how a legitimacy crisis would actually affect the Court, harming it as an institution. Some say that if people lose faith in the Court, they won’t follow the Court’s rulings, which would seem potentially to mean a legitimacy crisis. At the same time, there are historical examples of Americans not following the Court in various ways. School prayer is a famous example: Back in the 1960s, the Court pretty clearly said schools can’t have mandatory prayers, but a number of schools ended up still requiring prayer. Sometimes the school administrators understood the Court’s ruling and were consciously defying it; sometimes they didn’t know about the ruling at all. Ultimately, the Court can endure low-level defiance.
Looking ahead to this year’s midterm elections, the big political question is whether the Democratic Party and the broader American left can mobilize voters around the issues of abortion and the Court, which is something Republicans and the right have been rather effective at for more than 40 years.
Now, the overturning of Roe v. Wade was the most controversial decision in this term and the most controversial decision in recent memory, so we’ll have to watch whether that ruling transforms low confidence in the Court into defiance. But what would it mean to defy the Court on Dobbs, which left abortion policy to the states? The defiance would be indirect—with people ignoring a state’s prohibition on abortion, for instance. But that would be breaking a state law, not directly defying a Supreme Court ruling.
Another situation that could potentially signal a legitimacy crisis would be if political actors were to start significantly reforming or remaking the Court. I think some reforms would be great for the Court and for American society, including term limits for justices, but if reforms were to take significant powers away from the Court, that could lead to a crisis. For now, there isn’t widespread defiance of the Court and there doesn’t seem to be a critical mass of public momentum or political will for Court reform. President Biden doesn’t embrace the idea of transforming institutions. He’s been hesitant even to get rid of the Senate filibuster rule. I’ve heard some Republican strategists arguing that, if you’re a Democrat trying to get votes this fall, you don’t want to be talking about an issue like Court reform, which is somewhat abstract and could be divisive.
Vyse: How do you see this Supreme Court term affecting the currents of American politics?
Schmidt: Looking ahead to this year’s midterm elections, the big political question is whether the Democratic Party and the broader American left can mobilize voters around the issues of abortion and the Court, which is something Republicans and the right have been rather effective at for more than 40 years. Democrats need power in state legislatures and Congress to protect abortion rights, and they need Democratic presidents, and a Democratic U.S. Senate, if they’re to get new justices on the Court in order to overturn Dobbs. State legislatures and Congress have to be their most immediate concerns.
The aftermath of Dobbs has been somewhat extended in that there was a jolt of energy into reproductive-rights activism. President Biden spoke out, urging Americans to go to the polls and vote on this issue, which is now elevated within the Democratic Party. There does seem to be some uncertainty or lack of a clear direction about what exactly Democrats and progressives should be doing; a lot of people seem to be pushing in different directions. Talk about the Court’s illegitimacy is louder and more widespread than at any other point in memory, but talk alone doesn’t constitute a crisis.
Vyse: How unprecedented is this moment in the history of the Supreme Court, then?
Schmidt: A lot of the dynamics around the Court are unprecedented in ways that have to do with how American politics have developed—for instance, with the fact that the ideological divisions at the Court increasingly map onto divisions in partisan politics. The conservative majority is a Republican-appointed majority and it’s a majority that sides, substantively, with the values of the Republican Party.
One question we might have is whether the aggressive advances by conservatives that we saw in this term represent a new normal, or whether they represent more of a breakthrough, after which we’ll now have some quieter terms.
Overturning Roe is clearly an unprecedented move. It’s simplistic to say the Court has never taken away a right it previously extended, but Roe is different, because it’s the most recognized—or at least one of the most recognized—Court opinions. If you asked people on the street what Court opinions they know, they’d talk about Roe. It’s been at the center of politics for a long time. Most of what the Court does is a little outside the realm of what people think about, but Roe isn’t, and now opinion polls show that most Americans disagree with the position the Court took in Dobbs; they believe there should be some sort of constitutional right to abortion.
As a historian, I can see some rough historical analogies to this moment, but the Court is entering uncharted territory. One question we might have is whether the aggressive advances by conservatives that we saw in this term represent a new normal, or whether they represent more of a breakthrough, after which we’ll now have some quieter terms.
Vyse: How do you understand the risks to the Court in this uncharted territory?
Schmidt: Some of the rulings over this past term were controversial but in line with a preexisting trend—and some of the rulings, including on religious liberty, actually poll all right with the public—but Dobbs is different. There is a risk for the Court as it tries to maintain public confidence and adherence to its rulings. We’ve moved closer to a legitimacy crisis. The question is why five intelligent justices would want to take that risk for an institution I believe they love.
Vyse: How do you reckon the justices are thinking about this term and the fallout from it?
Schmidt: I can’t claim any special knowledge of their thinking, but all of the justices on the U.S. Supreme Court—across the ideological spectrum—believe in it as an institution that serves a vital role, which they want to protect. So, why would some of them want to go in the direction of heightened risk? Well, this is a generation of conservative justices who were raised within a movement committed to the idea that Roe was wrongly decided. Moreover, they probably believe that getting rid of Roe is good for the Court in the long term. I’m not sure they’re correct about that, but it’s what they likely believe. Some might argue that getting the law right, as they see it, is good for the institution. Some might argue that getting out of the abortion issue—or at least, off the frontlines of the issue—is helpful to the Court, even as there will still be lots of litigation about abortion that the justices will have to address.
The liberal justices’ dissent in Dobbs was fascinating. It was signed by all three of them—Justice Kagan, Justice Breyer, and Justice Sotomayor—and it’s a really powerful defense not only of the quasi-conservative idea that the Court shouldn’t be taking away rights but also of reproductive rights and abortion rights in particular. To my mind, it’s far more powerful than anything the Court had previously written about reproductive rights. The Roe opinion wasn’t actually a great articulation of why the right to abortion was important. The opinion in Planned Parenthood v. Casey was written by justices who were quite ambivalent about reproductive rights—they talked a lot about precedent. The Dobbs dissent was an opportunity for the liberal justices to articulate a better framework for thinking about these issues—a better framework for those advocating for abortion rights, whether in the streets or in the state legislatures, and a better framework for the Court potentially someday bringing back a constitutional right to abortion. If some version of Roe were to return, it would need to return stronger than before. The liberal justices grounded their support for the right to abortion in concern for women and equality, not merely liberty and privacy—so they may be looking for an opportunity in defeat to rebuild a more robust constitutional discourse about the values served by this right the Court just revoked.