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.

Jesse Collins

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.

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