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Does Dobbs v. Jackson Threaten The Supreme Court’s Legitimacy?

The only way that we can really meaningfully grapple with the Supreme Court's legitimacy is to ask: what was it actually built to do? Roe was wrong. It had become the political equivalent of a black hole, totally devoid of substance, but with such immense gravity that it distorts everything around it. Abortion, of course, isn’t going away as a political issue. The difference now will be that instead of having debates about Roe, we’ll debate about abortion.

In Public Discourse’s latest interview, Adam White, a senior fellow at the American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State, joined Managing Editor Elayne Allen to discuss how the Supreme Court’s Dobbs v. Jackson decision has shaped public perception of the court. They consider claims that the Supreme Court’s legitimacy has eroded and consider ways to strengthen the court’s institutional well-being.

White’s legal scholarship and popular writings cover American constitutionalism, the Supreme Court, and the administrative state. He has written and spoken about abortion and the judiciary in a variety of outlets such as the Wall Street Journal, Commentary, and National Review. In 2021, White served on President Biden’s Commission on the Supreme Court of the United States. You can read his statement here.

Elayne Allen: Thank you for sitting down to interview with us, Adam. I want to get started with some basic questions about what exactly legitimacy means. How would you say the Supreme Court’s legitimacy is constituted, and what would it mean for this court’s legitimacy to be lost?

Adam White: Well, I’m sure the political scientists could offer a much longer and much more precise definition of judicial legitimacy than I, but here’s how I tend to think about it. This an issue that’s been at the center of debates around the federal judiciary since the very beginning of our republic when Alexander Hamilton, the Anti-Federalist “Brutus,” and others were debating the Supreme Court. They had real questions about what the court should do and how the public might see it.

And those two things shape how I think about the legitimacy of the Court: both the quality of its substantive work, and also the ways in which the public sees that work. These two things are very much intertwined. But at root the most important thing is this: that we can only really judge the Court’s legitimacy as a court. It’s not a legislature, it’s not the executive branch, and it’s not even a state judiciary. It’s the nation’s Supreme Court.

And so I think the only way that we can really meaningfully grapple with its legitimacy is to ask: what was the Supreme Court actually built to do? And how is it carrying out that mission? And then when we look at the public’s opinion, of course, we take that seriously. But sometimes the more relevant question is whether the public’s criticism of the Court is legitimate, so to speak.

EA: Would you say that there has been any point in history when the Supreme Court’s legitimacy has been under threat outside of just public criticism of it? Has the Court failed to function the way it’s supposed to and instead behaved more like legislature or an executive? And, taking a step back, what does it mean for the Supreme Court to function as the Supreme Court?

AW: When I say function as a court, here’s what I mean: the Court was created to decide cases under laws and facts that are generally not of the Court’s choosing. There’s always some room at the margins for discretion, but, overall, the Supreme Court is bound more or less by the  law and facts. We don’t want courts making up facts. Courts are there to neutrally and independently decide individual cases. And along the way, they interpret what the law means.

I don’t know that there’s been a time when the Supreme Court has really, clearly fallen totally away from that, but there have been some moments when the Court’s legitimacy has been under attack in significant ways. The first would be around the end of the Adams administration, going into the Jefferson administration. Congress restructured the courts, and President Adams appointed an entire wave of judges.

 

We call them midnight judges because they were at the end of his term. They were intended to push the Federalist view of good governance well into the Anti-Federalist Jefferson administration. So you saw outright political warfare over those courts. Then the Jeffersonians restructured the courts again and shut down the Supreme Court for a year. You also saw the attempt to impeach a justice. This was less about what the Court was doing and more about what the political branches were doing, but it raised questions about the Court’s legitimacy.

The most infamous example of the Court truly falling short was in the Dred Scott decision. There, the Supreme Court conjured up a right not found in the Constitution to own slaves. This “right” was contrary to state law, federal law, even natural right. The Court was self-consciously trying to quell the ongoing debates over slavery in the United States. But the Court only escalated things by putting us on a glide path to a civil war.

President Lincoln—all the way through his inauguration—said very clearly that the Court’s decision was wrong and shouldn’t be followed. That was one of the two times that we’ve come closest to a true legitimacy crisis.

But we’ve seen other fights including, in the 1930s, when the Supreme Court struck down some parts of the New Deal and Roosevelt tried to pack the Court. We saw it later when the Supreme Court decided Planned Parenthood v. Casey, another, I think, very wrong decision. There, you saw a real questions from the political right about the Court’s legitimacy.

EA: I’d like us to pin down in a little more detail the relationship between the Court’s legitimacy and public opinion. One of the Court’s functions you named was to decide the facts of the case. Another one was correctly interpreting the Constitution. The Court’s legitimacy hinges on these things.

What should actually be questioned is public opinion when it runs afoul of the Court’s proper functions. Obviously the Court is not a majoritarian institution, and it can’t just crudely decide cases based on what the public thinks. But at the same time, if there’s a super-majority behind some position, and the Court decides against that, it seems like doing so would put the Court in a pretty vulnerable position in terms of its credibility. So how, if at all, should the Court think about public opinion? How much should it allow popular views to constrain its decisions?

I especially have in mind Chief Justice Roberts, whom I know you’ve written about and who seems conscious of public perception of the court. In theory, the Court doesn’t really have to regard public opinion. It just does its job and keeps its eyes on the Constitution and the rule of law and the facts of the case before it. But when the rubber meets the road and the Court’s actually doing its work, it seems hard to totally ignore public pressure.

AW: In Federalist 78, Hamilton addresses this question about the Court versus popular opinion and explains the need for judicial independence. In a republic, judicial independence is a barrier to the encroachments and oppressions of the representative body, right? He explains later that oftentimes it’s that the Court supports the people’s will in order to push back against legislators. And sometimes the people really are overwhelmingly in favor of something unconstitutional. And at those times you really need fortitude in the Court to stand up to the people and their representatives. You don’t want the court to be a weather vane. You don’t want it to decide cases self-consciously thinking about public opinion. We don’t want the justices to think in those terms.

Here’s how I tend to think is the right way for the Court to strike the balance. And again, we’ll start with Federalist 78. After Hamilton explains that we need the Court to be independent, he goes on to emphasize that when deciding cases and interpreting the law, the Court should always strike down laws as a last resort, not a first resort. With this, and in other ways, the goal is for the public to be able to trust as much as possible that the Court is doing these things out of duty, not out of will.

Chief Justice Roberts said from the very beginning of his career on the bench that he wanted the Court to decide cases really narrowly, with as broad a majority as possible. There were real downsides to that. As Justice Scalia said in a famous article, the court should announce broad rules, not narrow ones because you don’t want the lower courts to be left with no guidance. But Roberts’s approach is that, if we decide cases narrowly with broader majorities, and we take it just a little bit at a time, then the public won’t perceive the court as rushing itself into things. And I think there’s a lot to be said for that.

EA: I think that’s a good segue into Dobbs. When it was decided, it seems like Roe was based on anti-Roberts, anti-incrementalist reasoning. It didn’t seek to do as little as possible with the law it was considering; it struck down a state restriction on abortion. Based on what you just laid out, perhaps Dobbs could be seen as a correction to Roe’s original overreach. But some have argued that, since Roe has been on the books for decades, Dobbs too was a non-gradualist decision. So how do you think about Dobbs with the Federalist 78 lens, with the court doing as little as possible while working within the Constitution and upholding, protecting the Constitution?

 

AW: Well, I wouldn’t say the Court should do as little as possible. I’d say only doing as much as necessary. And this is a perennial problem, especially in this moment when you have a real disjuncture between how the Court used to do a constitutional analysis and how it does it today.

But this is also a perennial challenge for conservatives, and not just in the courts. What does it mean to conserve precedents or institutions created by a generation that was not trying to conserve, but rather to do the opposite? What is your duty then? Are you supposed to conserve progressivism? Maybe the best writing on this is by Justice Amy Coney Barrett, who wrote an article for Notre Dame Law Review on originalism and stare decisis precedent, in terms of Justice Scalia’s approach.

So here’s what I’d say about Roe and Dobbs. Roe was wrong. As John Hart Ely famously wrote, the problem with Roe isn’t that it’s bad constitutional law; it’s that it’s not constitutional at all and makes no effort to pretend to be. And by the time we got to Planned Parenthood v. Casey, there was really no legal argument for the merits of Roe. It was really a question about precedent, and (wrongly) public opinion.

So when we get to Dobbs, assuming that a majority of the Court believes that this Mississippi statute is constitutional, the question is: how far back should you roll Roe? Chief Justice Roberts’s view was that we don’t need to roll Roe back altogether right now. We can just roll back Planned Parenthood v. Casey a little bit, sustain the Mississippi statute, and leave the Roe fight for another day. And I actually think there’s a lot of merit to his approach there. I wouldn’t have been surprised to see more than one justice agree with him. Justice Alito and the other conservatives looked at the situation and they said, there’s no principled way for us to do a half measure.

It’s like the old line: There’s no way to be half pregnant. And I think that’s how the court seemed to see this abortion case. So they eliminated Roe, leaving to future cases questions about when the mother’s life is in danger and so on.

 

In general, I’d just say more broadly that abortion has distorted every aspect of the Court and our constitutional order. It’s distorted debates about precedent, about privacy. Abortion has also distorted Supreme Court confirmation battles. It distorted presidential elections.

So I don’t think Dobbs is a good case study in how to think about precedent. Roe was just too bad a case to be the case on which our entire system of stare decisis would hinge. The real questions going forward are going to be the tougher cases about other precedents. And there, I think we will see the Roberts approach have a bit more purchase on the minds of other justices.

EA: Let’s talk about the hyper-partisanship and political hardball that’s preceded Dobbs, and that has led to some accusations that the Supreme Court is illegitimate. There was the Merrick Garland incident, where Mitch McConnell refused to bring Garland up for a confirmation vote because it was an election year. Then he turned around just a few years later and had the Senate vote on Amy Coney Barrett during an election year. And some have questioned whether the Court is still non-political branch, thanks to the hardball surrounding it.

But, based on what you just said, it’s actually Roe’s really poor reasoning that paved the way for these distortions and this political hardball when it comes to controlling the Supreme Court. Because behind these nomination battles are attempts to either preserve or overturn Roe.

So how do you think about these nomination battles leading up to Dobbs, where some accuse Leader McConnell of packing the Court?

AW: Yeah. Justice Scalia pointed this out in his own dissent in Casey. He says to the extent that my colleagues or others worry that the confirmation process for justices is getting too ugly—the fact is, it’s getting ugly because the Court is imposing its political values on the country under the guise of constitutional law. The American people, they love democracy and they’re not fools, he said. So if they think that the Supreme Court is where political values will be hashed out, well, then they’ll make their voices heard through the confirmation process.

The confirmations really got ugly in the modern era when Justice Powell announced his retirement and it looked like Roe hung in the balance. Then President Reagan nominated Robert Bork, and from then on we saw fight after fight. In fact, it’s why, long before the allegations against Brett Kavanaugh’s came out, it was clear that his would be the ugliest confirmation battle in our lifetimes. Roe hung in the balance.

EA: I also want us to look what relationship there might be between the rhetoric about the Court not being legitimate and concerns of legitimacy about our other branches of government, especially the presidency. Bush in 2000 and 2004 was seen as illegitimate; and in 2008 there were nasty rumors about Obama being Muslim and a foreigner. Then Trump and Russia-gate in 2016. And in 2020, many Republicans were convinced that Biden “stole” the election.

So what relationship might there be among these various perceptions of governmental illegitimacy? Is there some kind of systemic breakdown taking place that you see?

AW: Let me start by backing up to where I started in the beginning. Remember, I said the Court’s legitimacy is strengthened when it takes small steps instead of bold ones, remains neutral, and avoids being too active. I should have also added that the Court must explain its decisions clearly so the public can really understand them.

And on the other side, the people themselves have a responsibility of their own when it comes to judging the work of the Court. It is the citizen’s responsibility to approach the court’s work with an open mind, try to read it in the best light, or at least not reactively read everything in the worst possible light. Just abasic kind of self-restraint that we expect out of citizens generally.

I don’t think it’s a coincidence that the public is criticizing the legitimacy of the Court in the same era that they’re constantly challenging the legitimacy of presidents, as you recounted Bush in 2000, Bush in 2004, Obama in 2008, Trump in 2016, or Biden with this ridiculous stolen election thing.

It’s a sign of the times. The president and the Court are seen as, and probably actually are, too powerful in our government. Without a doubt, they’re the most significant parts of our government, and Congress has receded. They act not by political compromise, like a legislature, but they act much more unilaterally. In a Supreme Court case, one side wins, one side loses. In a presidency, the president and his agencies basically do what they want to do. They don’t have to compromise really with the public.

 

So you get much more categorical, sweeping actions out of both the president and the Supreme Court. In the face of that kind of power, the public reacts not just by challenging the merits, but by challenging the very legitimacy of the actor.

I’m sure some of those arguments about illegitimacy are made in good faith. But I also think it’s a way to ratchet up rhetoric for even more sweeping reforms. At least in the Supreme Court, the legitimacy fight is now ballast for arguments to pack the Court and undertake other radical changes to the Court. So I think the legitimacy attacks on presidents are very deeply rooted in the same things that are giving rise right now at legitimacy attacks on the Court.

EA: So when a president we don’t like gets elected, you’re saying we should exercise civic virtue. We should show some deference before we start chanting “illegitimate!” at our political adversaries. And, when the Supreme Court rules on a case in a way that we really don’t like we should give pause and defer to its authority. Not blind deference, but rather defer to the institution’s integrity.

At the same time, our institutions don’t always have as much integrity as we’d like them to, and they often exceed their rightful limits and go beyond their constitutionally vested authority. So when we see the courts ruling on the basis of really weak principles—or nonexistent ones, in the case of Roe—or when the administrative state seems to be running amok, how should citizens who want to preserve the legitimacy of these institutions think about deference, in light of these non-ideal conditions?

AW: Earlier we were talking about how to be conservative in a world that wasn’t built to be conservative. How do we approach precedents that were set by people who didn’t respect earlier precedents? And here’s a similar issue. How do we practice some kind of small-r republican  self-restraint amid political actors and institutions that aren’t inclined to do likewise? We also have a system of checks and balances so that ambitious people in all parts of the government counteract one another. So self-restraint isn’t the only answer—you need both. You need times of ambition and checks and balances, and there are times when self-restraint is needed.

This is a timeless issue in our system. James Madison understood that we needed a system of checks and balances, not just because other people would become inflamed and impassioned, but because we ourselves would too. So my suggestion here isn’t to counsel blind deference toward the political branches. Rather it’s to stand up and argue for these sound principles, to pursue them the right way through the right channels.

The way you pursue reform through the executive branch isn’t the way you’d pursue it through the legislative branch. And it’s not the same way you’d pursue it in court. Also, our obligation as citizens, and as, say, litigants is not the same as judges’ obligations. If the job of the citizen or the litigant is to advocate, then the job of the judge is to decide the cases correctly, but also with a measure of self-restraint. The greatest challenge is to make sure that the right people are in the right jobs for the right reasons—to properly understand what makes for a good president in our constitutional system, what makes for good judges, what makes for good legislators. Evaluating an officeholder isn’t just considering their political label or their policies, either. It also requires understanding the quality of temperament and experience needed for these offices.

When it comes to the administrative state, it’s important to understand that the Constitution provided for the creation of these agencies, not to legislate on our behalf, but to actually administer the law. We ought to put primary emphasis on the extent to which the agency really is trying to interpret and not just make up the law, the extent to which it really is trying to bind itself to real facts and isn’t just conjuring up alternative facts for their own policy reasons. We have to judge agencies in those terms. So when they’re doing things the right way, they deserve a measure of deference. But when they are just trying to legislate in lieu of Congress, well, then we should criticize them vocally. And the courts should fully assert the limits imposed by law on those agencies.

EA: Let’s discuss your 2021 Commentary article in which you map out the various distortions that Roe has caused in our constitutional system. Obviously it was written before Dobbs. I took your primary point to be this: because of how poorly reasoned Roe was, it’s become our political center of gravity, and it’s led many of our political actions to be interpreted through the lens of whether abortion rights will stand or fall. First, I want to give you a chance to restate your argument in your own words, but also I want to revisit it in a post-Dobbs context. It seems that even though Roe has been overturned, abortion still occupies a central place in our political system. So what do you think this new moment spells for the place that abortion plays in our politics?

AW: What I wrote in Commentary, you summarized it really well. My essay pointed out that Roe had become the political equivalent of a black hole, totally devoid of substance, but with such immense gravity that it distorts everything around it. And that’s what we saw, not just in the Court’s abortion cases, but in any debate about precedent in other cases on totally unrelated subjects. Some Supreme Court cases considering precedent from the 1970s over criminal juries, for example, these all became weird proxy wars over Roe v. Wade. Supreme Court nominations also became proxy wars over Roe, and then presidential elections became proxy wars over Roe. Abortion isn’t going away as a political issue. The difference now will be that instead of having debates about Roe, we’ll debate about abortion. I’m sure progressives hold out hope they might just be able to quickly reverse Dobbs. But on the whole, we’ll have more debates about abortion—limiting it, prohibiting it, or creating access to it. There’s no way around abortion being an immensely consequential and heated political issue. And rightly so. It’s literally a matter of life and death. So it’s going to become an immensely consequential issue in the states in a new way now that state legislators will actually have to legislate and draw lines around these things.

We’ll also have debates over what the agencies of the federal level can do. We’ll have debates over Congress’s powers either to guarantee your right to abortion, or to prohibit or regulate abortion, in ways that we haven’t really seen before. We’ll see states trying to use state power to enact a kind of a federal policy by limiting who can travel across state lines for abortions and so on. All these things will be extremely consequential.

 

Abortion may well continue to be one of the two or three most important political questions of our time. But the difference now is that it’ll be argued in somewhat more healthy ways. It won’t be perfect—it’s going to be very ugly and full of demagoguery and everything else. But at least it won’t all be shoehorned into a debate about a particularly bad Supreme Court precedent.

EA: You served on the Presidential Commission on the Supreme Court to study proposals about reforming the court. You spent close to a year on that commission reading about the history of the court and studying it with your fellow commissioners. Now the Supreme Court is freed from the baggage of Roe, are there any reforms you think could update the Court for our modern era, while keeping it firmly rooted in the Constitution? And does the Dobbs decision change your opinion about what the Court needs?

AW: Through my work on the commission, I became concerned about the way that the Court grants relief through the emergency docket, sometimes called the shadow docket, in cases that are still in progress, issuing injunctions without full oral argument, without the usual kinds of briefing. I understand why the Court does it. But I think it has become politically fraught, and I was happy to see that the Court, partway through this term, began to rely less on the emergency docket and more on full review of cases on an expedited basis. That sounds like a small difference, but it’s really not. It means finding a way for the Court to do full justice to a case on a faster timeline. So I liked that change.

I also think it would be good for Congress to reform the ways in which cases arrive at the Court. The Court ought to have less discretion in picking its cases and ought to hear more cases just as a matter of duty. I’m not sure when that reform, if ever, will be implemented because, frankly, it would have serious political consequences. I saw responses to this reform when I was on the commission. Many criticized the Court’s discretion. I said, well, let’s take away discretion. But it wasn’t very appealing to people who aren’t fans of the Roberts Court, because it would mean the Court would be forced to decide more cases. So it’s going to take some time to see how things shake out, not just post-Dobbs, but post this new 6-3 court with Justice Barrett and Justice Jackson on the court.

We’ll have to see how that settles. Maybe in the long run you could see room for bipartisan reform. Just recently, we’re seeing prospects for bipartisan reform on the Electoral Count Act, which seems every bit as politically fraught. But serious institutional reform take a long time, which is why I was particularly happy to see the Court attempt some reform from within.

EA: Well, we can end here on a bit of a positive note. This was great. Thank you, Adam.

AW: This was fun—I always enjoy our conversations. And thanks to Public Discourse for all of its great work, all more important than ever.

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