‘Zero Legitimacy’

A growing number of Americans disapprove of the U.S. Supreme Court, which is returning to the center of their national politics this year as President Joe Biden chooses a nominee to fill retiring liberal Justice Stephen Breyer’s seat and the Court’s 6-3 conservative majority is poised to overturn the landmark abortion-rights decision Roe v. Wade. Earlier this month, the Pew Research Center reported that Americans’ view of the Supreme Court is “as negative as it has been in many years.” (The Pew survey, conducted before Breyer announced his retirement, found that 54 percent of U.S. adults still had a favorable view of the Court, but a Gallup poll last September showed just 40 percent—a low point since 2000.) The Court is facing perceptions of partisanship, with even a member of the Court, the liberal Justice Sonia Sotomayor, herself recently asking whether the institution would survive “the public perception that the Constitution and its reading are just political acts.” All of this has led to a growing public debate in America about the Court’s legitimacy—even talk of a “legitimacy crisis.” Is there one?

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 an upcoming book about the Court’s relationship with the American public over the last century. As Schmidt sees it, the institution isn’t anywhere near a real legitimacy crisis, because he sees a real legitimacy crisis as meaning mass defiance of the Court’s rulings. While overturning Roe would be controversial and consequential, Schmidt says, he won’t expect it to change the American public’s fundamental sense of the Court’s legitimacy—though the impact of such a ruling might be magnified by big victories for conservative opinion in upcoming cases on affirmative action, guns, and voting rights. At the same time, he says, the Court has become a more prominent political issue in U.S. elections than it was a decade ago—or than it’s been through most of U.S. history. This shift might make the Court more divisive, Schmidt says, but it will also help prevent it from seeming irrelevant to people’s lives.

Graham Vyse: To start with, what does it mean for the Court to have legitimacy in America?

Christopher W. Schmidt: The default meaning of legitimacy, as people tend to use the word in the media and most popular discussions—particularly with these concerns about a crisis—has to do with public opinion: Do people approve of or have faith in the Supreme Court? The Court has typically had an approval rating of 50 or 60 percent during the past two decades. You may have seen a lot of references to polling last fall, showing Court’s approval rating as being historically low—down to about 40 percent in some polling—if still nowhere near as bad as approval ratings for Congress.