Before I write an article on the recent opinion of the Supreme Court on Alabama’s redistricting laws, I want to write a brief article on the Court and a concept called, legitimacy.
I like to say the Supreme Court is the like The Wizard of Oz. It seems to hold immense power, almost like a throne of a nine powerful wizards who can, with one swing of the wand, change the very course of the nation. The key point here is that they seem to hold this much power. But if any of you have seen The Wizard of Oz, you’ll remember that the wizard was in fact, not even a wizard, and simply held power because he was able to masterfully maintain an illusion of power that people believed in. All it would take for him to lose his power would be for people to begin to doubt the legitimacy of his power.
The Supreme Court is the same. It has no real power. In fact, the judicial branch was always considered the weakest or “least dangerous” branch because it does not wield the sword (the executive) or the purse (the legislative). It must rely exclusively on the executive, legislative and states to carry out or operate according to one of the Court’s opinions.
Get this. The Court has no power.
Now, I’m not saying this because I believe it shouldn’t have power. It should. But the reality is, it doesn’t have any real power of its own. Its power comes from the belief that the citizenry puts in it’s power. This is called legitimacy.
The latin meaning of legitimacy is “let the decisions stand”. In other words, the Court continually backs up its own past decisions and the rest of government complies with the Court’s opinion. The citizenry then believes in the power of the Court’s decisions, and the power of the Court in general (usually the judicial branch is pretty popular), which pressures the executive, the legislative, and the states, to comply with the Court’s rulings–making the Court’s rulings powerful.
If the other branches didn’t want to comply or put power behind the Court’s rulings, they could simply decide not to comply and friends, what could the nine justices on the bench do about it?
Nothing.
And so, they play a tenuous game with the public opinion. Supreme Court Justices are not elected and are thus supposed to be insulated from the whim of public opinion. However, a good amount of research has shown that this isn’t what happens in reality. Public opinion can have an indirect effect on the Court’s rulings by pressing them to maintain a semblance of power, prestige, balance, and popularity so that the other parts of government will never feel the freedom or bravery to simply ignore the Court’s opinion on something.
However, currently, Gallup Polls indicate a risky dip in approval for Court. Specifically, 58% of Americans disapprove of the institution right now. And that is something justices are sure to take note of…
Whatever we think of the opinions of the Court, this most recent one or any of the others, is really of less importance when compared to what we think of the institution overall.
The Court is always going to try and balance their opinions to maintain some semblance of legitimacy and popularity as an institution with the public.
Remember to keep this reality in mind whenever you assess or consider any Court opinions, whether the opinion be one you agree with or not.
The Liberty Belle
Excellent insight, well expressed, as usual, Ms. McMasters.
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The article doesn’t seem to be addressing a specific topic the court has tackled recently as the title suggest but more on the recent public awareness of how the sausage is made. As with other institutions over the past 50 to 60 years our confidence in the Supreme Court authority has been eroded. When the TWO PARTIES are the ones who do the deciding as to who is qualified to sit on the court it is easy to assume we lost any objectivity. Sure, there are occasional forays into actual questions on jurisprudence when they are nominated but these brief instances are overshadowed by what has become the usual party theatrics and demagoguery by the braggadocio of some Senator trying to stay relevant back home with his election coming up. Sadly, partisanship has become an important part of all three branches of government, but we only seem to object to it when the decision goes in the other parties’ favor. As you mentioned public opinion has also become a big determination of who gets a seat on the court and what they decide. It shouldn’t but then the only qualification needed to get a nomination for a seat on the Supreme Court is a party card and be in good standing with the Federalist Society. Placating the base is a bonus. As far as quotas for appointing women or minorities we passed that milestone question 40 something years ago.
As I said before elections of judges are out of the question. The idea goes back to Theodore Roosevelts 1912 campaign, but elections mean campaigns and campaigns mean raising money. Have we forgotten it was only recently that donations / gifts have had people questioning Justice Thomas and Roberts ethics.
Lastly you touched on this so briefly I’m not quite sure if I understood you right but advocating “Simply not complying” to a court ruling is not a viable option. I read where President Trump suggested taking this action when he was asked to produce the classified documents and his lawyer immediately dismissed it. Taking such action would put you in contempt of court and by questioning the courts “legitimacy” you would attempt to destroy the foundation of our government. Perhaps I misunderstood the context of your statement and if so I apologize.