Court upholds law, not public opinion
Re: “The Supreme Court’s crisis of legitimacy,” Other Views, Oct. 4:
After Washington Post columnist Ruth Marcus correctly acknowledged the U.S. Supreme Court should be “independent and not shift with the political winds” and that justices have life tenure “precisely to insulate them from political pressure,” she noted the court’s “plummeting approval rating” in a recent Gallup poll. She then argued that if the “judicial philosophy” and “ideological balance” of the court’s majority are not consistent with “public opinion,” the court loses its “legitimacy.”
Marcus recounted the appointments of justices by political party since 1969 and declared this “the most conservative court since the 1930s.”
From that premise, she argued “a court whose ideological balance is out of line with that of the country can find itself in dangerous territory” and “this systemic and entrenched disconnect between public opinion and the judicial philosophy of the court’s majority creates a problem when it comes to assuring that the court’s decisions are accepted and followed.”
Because Marcus did not contend that the court’s decisions do not adhere to the rule of law, the explicit thrust of her argument is that “public opinion” means political opinion, and to prevent being “out of line” with, and avoid having a “disconnect” from, the prevailing political preference of the moment, the court must “shift with the political winds” and be sensitive to “political pressure.”
Marcus quoted with approval a statement by
Justice Elena Kagan, identified as a member of the court’s “minority”: “The court’s strength as an institution of American governance depends on people believing it has a certain kind of legitimacy, on people believing it’s not simply just an extension of politics, that its decision-making has a kind of integrity to it. If people don’t believe that, they have no reason to accept what the court does.’”
That statement is equivalent to asserting that people may reject the court’s decisions with which they disagree. That is a repudiation of the rule of law by a member of the branch of government that was created to preserve the rule of law.
Under Article III of the U.S. Constitution, the Supreme Court has the ultimate jurisdiction to resolve issues raised in litigation concerning the constitutionality of government acts. The rule of law requires that justices base their decisions on jurisprudential interpretations and applications of the Constitution, and that citizens comply with the court’s decisions. If citizens are permitted to decide arbitrarily that they may reject a decision because they believe it lacks “integrity” or “legitimacy,” government of laws will be replaced by government of men.
Marcus began her column by stating that the court “begins its 2021 term at a most perilous time — perilous not just for the country, but for the Supreme Court itself.” She is correct, but not for the reasons asserted. This is a perilous time for the country and the court because the rule of law is being threatened; the author ignored it. In a government of laws, the rule of law is the only test of “integrity” and the only basis of “legitimacy.”
Robert R. Barton is a retired district judge in Kerrville.