US Supreme Court at Brink of Illegitimacy, Calls for Reform Intensify
The US Supreme Court is facing a crisis of legitimacy, with growing calls for its replacement and reform. During President Trump's second term, conservative justices consolidated power, undermining the court's legitimacy and contributing to a collapse in public approval.
The concept of legitimacy, as discussed in the 1992 Planned Parenthood v Casey case by justices Kennedy, O'Connor, and Souter, involves both the substance of decisions and their acceptance by the public. The replacement of Justice Ginsburg by Justice Barrett challenged liberal hopes to preserve the court's legitimacy, with cases like Dobbs v Jackson Women’s Health Organization cited as instances of eroding trust.
Concerns have been raised about the court's potential strategies, such as declaring independent agencies unconstitutional and permitting the removal of Federal Trade Commission and National Labor Relations Board members. Chief Justice Roberts has suggested that the Federal Reserve could be treated differently under these emerging legal approaches.
Liberal justices Jackson, Kagan, and Sotomayor have issued aggressive dissents, although there is disagreement among liberals on how to best respond to the crisis. Additionally, the court's reliance on the 'shadow docket'—issuing decisions with fewer full opinions—has sparked debate over the need for clearer justifications and potential reforms.
Authors Ryan Doerfler of Harvard and Samuel Moyn of Yale advocate for remaking institutions, including expanding or reducing the power of federal courts, to promote democracy and prevent oligarchy. They argue for popular rule and democracy rather than reaffirming judicial power alone, framing their call as part of a broader proposal to reform both the Supreme Court and American democracy.
