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Dissenting jurists: Overturning Roe undermines court’s legitimacy

All the Supreme Court has is its credibility. The more Republican-appointed justices treat the institution's legitimacy blithely, the more lasting the harm


In the Supreme Court’s 1991 Casey ruling, which upheld Roe v. Wade, the majority wrote, “Like the character of an individual, the legitimacy of the Court must be earned over time.”

In their dissent in Dobbs v. Jackson Women’s Health Organization, Justices Stephen Breyer, Elana Kagan, and Sonia Sotomayor added this morning that the legitimacy of the Supreme Court “can be destroyed much more quickly.”

The center-left jurists went on to note that today’s ruling overturning Roe “undermines the Court’s legitimacy.”

This isn’t a dynamic in which the Republican-appointed justices in the majority are unaware of the problem. They simply appear indifferent to the concerns.

It was just yesterday when Gallup released the results of its latest national survey, which found Americans’ confidence in the Supreme Court as an institution dropping sharply over the past year and reaching “a new low in Gallup’s nearly 50-year trend.”

There’s related data to bolster the point. As regular readers may recall, last fall, a national Grinnell College/Selzer poll found nearly two-thirds of Americans agree that politics drives Supreme Court rulings. In fact, the usual partisan divisions were unimportant: Democrats, Republicans, and independents all answered the same question in roughly the same way.

“This is a nightmare scenario for Chief Justice John Roberts, who has sought to protect the court’s reputation as an apolitical institution,” Grinnell College National Poll Director Peter Hanson said at the time. “The court faces a public convinced that its decisions are about politics rather than the Constitution.”

That was in October 2021. One need not be an expert in public opinion to expect these attitudes to intensify in response to a week like this one.

To the degree that Roberts wants Americans to respect the high court as a fair arbiter and trusted institution, that mystique, if it ever existed in earnest, is fading fast.

In September 2021, Justice Amy Coney Barrett tried to defend the Supreme Court’s political impartiality — while speaking alongside Senate Republican Leader Mitch McConnell, who rushed her onto the bench during the 2020 presidential election as part of a brazenly political display, and who invited the justice to speak at a University of Louisville center that bears his name.

“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett said at the time.

Her goal is now further out of reach.

Vox’s Zack Beauchamp noted last month, “The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.”

There’s ample evidence from history that when the nation’s founders were creating our system of government, they were mindful of this and feared the court would be seen as weak. Alexander Hamilton wrote in Federalist No. 78:

“The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”

In other words, all the institution has is its credibility. Perceptions about its judgment stand as the sole source of its power.

The more the Republican-appointed justices blithely push their credibility aside, in pursuit of transparently political goals, the more profound the damage they do to their own Supreme Court.

How did the justices arrive at today’s outcome? Public attitudes toward reproductive rights haven’t significantly changed over the course of the last half-century. Neither has the science surrounding reproductive health.

What changed is that an increasingly radicalized political party launched a successful campaign to alter the Supreme Court’s ideological direction. Roe wasn’t overturned because of developments in an American jurisprudence; it was overturned because the GOP and its allies set out to win a culture war, and they found six ideologues in robes to help them execute their plan.

During oral arguments in Dobbs, Justice Sonia Sotomayor asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

This need not be a rhetorical question.

The court’s far-right majority did extraordinary harm today to a pillar of modern American public life. Whether they realize or not, the harm the justices did to their own institution was just as dramatic.