Jason Willick falsely claims in his May 15 Washington Post Opinion piece www.washingtonpost.com/...that there is no legitimacy crisis of the Supreme Court. He claims progressives argue that “legitimacy equals popularity”, while “conservatives are more likely to believe the court is legitimate when it interprets the law strictly according to its text, irrespective of public opinion”. Willick’s arguments concerning populism and textualism accomplish nothing other than adding distracting noise to the partisan political swirl surrounding the court. What Willick actually fails to discuss are the most important foundations of the court’s legitimacy, namely the integrity of the confirmation process, and the court’s actual decisions being perceived as apolitical.
Concerning the process of confirming nominees to the court, Mitch McConnell has single handedly undermined the legitimacy of the court over the last five years, stacking the court by egregiously manipulating and making up Senate rules. That crassly partisan process has resulted in denying President Obama a vote on his eminently qualified Supreme Court nominee Merick Garland, and in the confirmation of conservative justices who in hindsight appear to have perjured themselves concerning their statements about Roe v Wade being “settled law”. Thanks to McConnell the court’s legitimacy will be questioned for at least a generation.
Then there are the court decisions. Bush v Gore comes to mind. The fact the court even heard that case meant the court had become politicized.
The Citizens United ruling delegitimized the court by allowing multinational corporations and extremely wealthy individuals to usurp and dilute the power of individual voters, undermining the very democracy that is the essence of our country. This is borne out in the astronomical amount of money raised and spent on political campaigns in this country, much of it “dark” money (https://www.fec.gov/updates/statistical-summary-21-month-campaign-activity-2019-2020-election-cycle/).
Shelby County v Holder gutted the voting rights act with a ruling that quintessentially was legislating from the bench and which could lead to entrenched minority rule.
Kelo v New London allows private property seizures for non-public use, explicitly contrary to the Fifth Amendment.
These and other SCOTUS rulings are antithetical to the Constitution and undermine the court’s legitimacy.
Alito’s leaked opinion overturning Roe is one more example of an outcome which undermines the court’s legitimacy. His logic exudes moral religious proselytizing, violating the separation clause of the First Amendment, and is devoid of any sound constitutional basis. He sights 14th and 18th century opinions based on extremely misogynistic ideals. Alito undermines his own originalist argument when he disingenuously attempts to limit its scope exclusively to the subject of abortion. He sights the legitimacy of overturning bad precedents like Plessy v Furgeson without mentioning that in every overturned case the outcome was the expansion of rights. The overturning of Roe, on the other hand, will result in the right of bodily autonomy being severely curtailed if not eliminated, and will have negative consequences for individual citizens as well as for the country as a whole.
Ultimately Willick misses the mark completely. This court’s legitimacy is on life support. The court’s legitimacy does not depend on the majority of the people agreeing with the court decisions, it merely requires the populous respect those decisions. Thanks to McConnell and many poorly reasoned case outcomes, a majority of the people neither agree with nor respect the court (https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx). The result is the court’s legitimacy slipping off its bedrock foundation into the quicksand of raw political power and corporatism.