In some ways, the Supreme Court is akin to the Federal Reserve. Its decision makers are unelected technocrats who use arcane methods and vocabularies (“stare decisis” for the court, “zero lower bound” for the Fed). Because of the obscurity of their work, it is essential that the public trusts that everything is going well behind the curtain. Gallup poll data showed that only 25% of Americans polled before Dobbs had confidence in the Supreme Court. This was the lowest polling level in almost 50 years.
Epps stated that Justice Anthony Kennedy is the only person on the court today. He was independent and sometimes unpredictable in his jurisprudence despite being a Republican appointee. Kennedy retired in 2018. “The screening is far more rigorous” now than when Kennedy joined the court in 1988, so a freethinker such as he would never get on the bench, Epps said.
Only Chief Justice John Roberts, a Republican-appointed justice on the Supreme Court seems to be concerned about maintaining the impression that it is apolitical. In the Dobbs case he voted with the majority in upholding a Mississippi law restricting abortion but said he would have taken “a more measured course,” stopping short of overruling Roe outright.
The Dobbs decision came one day after the Supreme Court struck down New York’s limit on carrying guns outside the home. In Dobbs, the court upheld states’ rights to restrict their citizens’ behavior, while in the New York case it did the opposite. That may appear inconsistent to supporters of abortion rights, but it’s precisely what the average Republican voter wants, said Maya Sen, a professor at Harvard Kennedy School.
“We take as a given that political actors will want a judiciary that serves their interests,” said Sen, who is the co-author with Adam Bonica of a 2020 book, “The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary.” “For many Republicans this is a day of celebration, of victory,” she said.
It was James Gibson, a colleague of Epps at Washington University who is an expert on the legitimacy of the Supreme Court, who coined the “legitimacy is for losers” phrase. In a chapter in a 2015 book, he wrote: “Institutions do not require legitimacy when they are pleasing people with their policies. Legitimacy becomes crucial in the context of dissatisfaction.”
Source: NY Times
