Opinion by Jason Willick: What is legitimacy anyway? A ruling could be unpopular without damaging the court’s standing.
who has thought most deeply about this question may be the retiring Justice Stephen G. Breyer. His 2021 Harvard, “The Authority of the Court and the Peril of Politics,” challenges both progressive and conservative views of judicial legitimacy.
The court’s legitimacy is tested most, Breyer’s examples show, when it orders elected officials to take actions they oppose. The court would not be wise in those delicate cases either to blindly follow opinion polling or to adopt interpretations of the law so disconnected from political reality that they could be ignored. Instead, the court must practice a kind of realpolitik — selecting areas where it can have influence, and boxing the elected branches into compliance until it becomes a habit.
, which ordered the end of Jim Crow educational segregation, put the court’s legitimacy directly to the test. Three years later, Arkansas Gov. Orval Faubus blocked the Little Rock Nine from integrating Central High. President Dwight D. Eisenhower ultimately ordered the Army’s 101st Airborne to force Faubus and the Arkansas National Guard to stand down. “The parachutists took the nine brave black students by the hand and walked them into the formerly white school,” Breyer wrote. “So the court won this confrontation, did it not? It did, but it wonThe president’s intervention in such situations was not assured.
Norms around the Supreme Court have lost currency. But one reason partisans work so hard to control the court’s membership is their belief that rulings will be widely respected and difficult to defy. Rhetorical assaults on the court will continue, but progressives will be disappointed if they expect its authority to simply dissolve in the crucible of partisan fury.
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