Judgment Days

The Supreme Court of the United States is now “illegitimate,” according to 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 codirector 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 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.