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The Supreme Court’s legitimacy problem 

October 14, 2022

The Supreme Court has a major legitimacy problem that threatens American democracy and the future of our country. Considering recent Supreme Court rulings on women’s rights and the environment, two issues at the core of ActionAid’s work around the world, the Court and its reputation is timely and on the minds of many as we approach midterm elections. Without debating the merits and politics of recent court rulings like Dobbs v. Jackson Women’s Health Organization, which overturned Roe v Wade, and West Virginia v. Environmental Protection Agency, which restricted the EPA’s ability to enforce climate change policies and enforce emissions restrictions, it is apparent that the court is out of touch with the majority of the American people.  

This is not to say that the majority is always right and that the Court should blindly follow the public’s lead. Our system of government is rightly organized in a way to avoid the dangers of the “tyranny of the majority,” as political thinkers like John Adams and Tocqueville discussed, and discourage partisan rulings that swing the law back and forth every election cycle. However, this issue, the issue of the Court’s legitimacy in 2022 and their complete disconnect between public sentiment and their actions is not an issue of the “tyranny of the majority” or a spurned public reacting to decisions they disagree with. As Chief Justice John Roberts recently said, “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.” True, but that is not what is happening.  

The legitimacy of the Court is being criticized not because of their rulings, but because of their obvious partisan bend. As a New York Times Op-Ed recently reported, Justice Kagan has pushed back against Roberts and argued “that the conservative majority had damaged the court’s credibility with the public in decisions that seemed to track the political and ideological interests of the Republican Party more than any coherent interpretation of the Constitution.” As Kagan states, “The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process.” It is apparent that the court’s legitimacy has been squandered in the service of partisan victories. 

A record 58% of Americans do not approve of how the Supreme Court is handling its job, and only 25% of Americans have confidence in the Court. This crisis of confidence is justified when the lines between our political and judicial systems have become blurred. President Trump made no secret of his intent to transform the court “into a judicial arm of the Republican Party,” but the rightward shift of the Court continued after the end of his term, ticking off major right-wing objectives including limiting environmental regulation and overturning Roe v. Wade, the culmination of almost 50 years of activism. In the pursuit of republican victories, “the court has unmoored itself from both the Constitution it is sworn to protect and the American people it is privileged to serve. 

56% of Americans disagree with the overturning of Roe v Wade, but this isn’t the only issue where the Court is on the wrong side of public opinion. Both Justices Thomas and Alito have argued for overturning Obergefell v Hodges, the 2015 case legalizing gay marriage. This is a fringe position in a country where 71% of people support same-sex marriage, including at least 55% of Republicans.  

While the Court should not make decisions based on public opinion, it is obvious that the conservative Justices on the Court are not representative of the American people or our Constitution when their docket and opinions read like a right-wing wish list, a court so politicized that it would be almost unrecognizable to our founders who created the institution 233 years ago.