SCOTUS Is Reaping the Illegitimacy Its Illegitimacy Has Sown

Oct 8, 2021 by David Fowler

SCOTUS Is Reaping the Illegitimacy Its Illegitimacy Has Sown
Last Friday, U.S. Supreme Court Justice Samuel Alito decried the media creating the perception that the Court is a “dangerous cabal.” Justices Amy Coney Barrett and Stephen Breyer also recently spoke in defense of the Court ‘s legitimacy. But I had to laugh at Alito’s comment because of what he said about the Court a few years ago. The Justices are nervous about the Court’s legitimacy and whether its upcoming decisions on abortion, guns, and religious liberty could lead to “court packing.” Here is what the Justices need to do.

Justice Alito’s  ‘Cabal’ Comment

The protest by Justice Alito arose out of the Court’s decision a few weeks ago not to grant an emergency stay to prevent the Texas law on abortion from going into effect.
Specifically, he decried the term “shadow docket” used by media, lawyers, and pundits to describe the process by which persons can petition the Court to act quickly. But that term is a bit of a misnomer. A “regular docket” case would be one for which the Court would have the benefit of a fully developed court record and the benefit of oral argument. Not having a full record and oral arguments on a “regular docket” and not having them is what makes these “emergency petitions” a “shadow docket.”  
Justice Alito said:
The catchy and sinister term “shadow docket” has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.
Certainly, the term “shadow docket” has a nefarious sounding connotation, but the reason the Court is portrayed that way is because it has, in fact, become “a dangerous cabal that resorts to sneaking and improper methods to get its way” on matters of public policy.

Justice Alito’s Previous Statement Damning the Court

Ironically, Justice Alito effectively called the Court a dangerous cabal in 2015 in his opinion dissenting from the majority decision on same-sex “marriage” in Obergefell v. Hodges. He wrote: “Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed.”
When a branch of government knowingly exceeds and abuses its powers, it is a dangerous cabal.

SCOTUS Has No Compulsive Power

Ironically, no court, including the U.S. Supreme Court, has the power to make law for the whole people of a state or the nation. As Scalia said in his Obergefell dissent, the judicial power is actually devoid of any compulsive power. Quoting from The Federalist No. 81, he wrote:
The Judiciary is the "least dangerous" of the federal branches because it has "neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm" and the States, "even for the efficacy of its judgments. (emphasis supplied)

As the italicized words indicate, the Supreme Court and the federal courts below it cannot even enforce their own judgments in favor of one party and against another! Other government actors—someone the federal executive branch or a state official—must give effect to the Court’s judgments or else those judgments lie dormant.

What ‘power ‘does the U.S. Supreme Court have?

The Court answered this question in Planned Parenthood v. Casey, the abortion decision that is now being reevaluated by the Court in Dobbs v. West Jackson Women’s Center:
[T]he Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands. (emphasis supplied)

The Court followed with another comment about public perception:
The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. (emphasis supplied)

Then the Court summed up the foregoing as follows:
Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. (emphasis supplied)
In other words, when a large enough segment of the people think the Court is a “dangerous cabal that resorts to sneaky and improper methods to get its ways,” then its judgments may be treated as irrelevant to the people as a whole and go unenforced by elected officials beholden to the people. When that happens, the Court will become again what it actually is—“the least dangerous” branch of the government—only resolving particular disputes between particular parties.

The Day of Reckoning Predicted

Justice Antonin Scalia, in his dissenting opinion in Obergefell, hinted quite loudly that this day of contempt for the Court would arise:
With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the "reasoned judgment" of a bare majority of this Court—we move one step closer to being reminded of our impotence. (emphasis supplied).

The Court has looked for and found excuses to uphold Roe v. Wade for 48 years when virtually no legal commentator has said the rationale given by the Roe Court was constitutionally legitimate. 

By refusing to admit its mistake in 1992 in Planned Parenthood v. Casey and by acknowledging its fear of looking political if Roe were reversed, the Court cemented the belief in everyone’s mind—liberals and conservatives—that its decision really was based on public perception, not the Constitution.

What the Court Must Do to be Legitimate Again

Having sown the seeds of illegitimacy for decades, the Court will now be seen as illegitimate by either the pro-abortion or pro-life side depending on whether it upholds Roe and Casey in the Dobbs case (illegitimate to life advocates) or reverses them (illegitimate to abortion advocates).

To restore its legitimacy, the majority of the Court needs to come clean with the people. It should admit the Court’s error in Roe and admit its perpetuation of the error in Casey.

However, it must also acknowledge that it is the weakest branch of government,  because its enforcement power really is limited. And it needs to acknowledge, as Scalia said, that the other branches of the federal government and state governments have their own constitutional independence by which they can evaluate what weight to give the Court’s opinions. In my opinion, the only way the Court can tell the people that political court-packing is unnecessary is to tell them that it is once again taking up its position as the least powerful branch of the government.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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