Mary Ziegler, a professor of law at Florida State University College of Law, has written a short article about the Supreme Court for The Atlantic: “The Conservative Justices Don’t Seem Too Worried About the Court’s Legitimacy.” It would be better titled, “The Conservative Justices Don’t Seem Too Worried that I, and My Colleagues, Really Don’t like What They’re Doing, and They Keep Ignoring that We Want Them to Stop Right Now.”
Many, many articles that clog up The Discourse, such as it is, once they’re reframed in that way—as the bellyaching of people who simply cannot imagine disagreement from non-Nazis—make much more sense. Then, they become easier to dismiss as fallacious, and, helpfully, they cease to hold sway over our minds.
In other words, we’re released from the perilous fear that to act against the ranting and raving of Very Serious People is a sin. It’s not. Not even close.
I might call it a duty.
As Professor Ziegler tells it, the court is moving quickly to expand gun rights on the one hand and to restrict abortion and voting rights, as well as affirmative action in higher education, on the other. These developments, I take it, worry Professor Ziegler—someone we could be forgiven for thinking is a hoplophobe who doesn’t mind millions of dead babies, unsecure elections, and racist university-admissions practices. She goes on: “Polling demonstrates that the Court’s popularity has fallen to an all-time low, driven by perceptions that the justices are partisan. The Court’s conservative majority seems remarkably unconcerned about potential damage to its reputation.”
That’s hilarious to read. But Professor Ziegler’s serious (somehow). In her mind, the court’s low, 40% approval rating is the result of entirely organic processes, i.e., people who pay hyper-close attention to the inner workings of the courts and get super worked up by their decisions. Never mind that we live in a country in which more than half of the population can’t name a single Supreme Court justice.
Of course Professor Ziegler’s wrong.
In reality, the court’s approval rating is bad—but far better than Congress’s, which in 2013 was less popular than a root canal—because, ever since Justice Antonin Scalia passed away ahead of the 2016 Election, the Left has been in hair-on-fire panic mode, propagandizing against the court night and day, day and night, and becoming shriller (and more pathetic) by the minute.
Five years and counting is a long time. And with their vast messaging resources, the hit to the court’s approval rating isn’t at all shocking. What would be shocking is if the court was just as popular (or more) now as it was in 2016.
What Professor Ziegler claims to be worried about is the Court’s “sociological legitimacy”: how it’s perceived by the public and whether it and its decisions are respected and obeyed. (A subset is the court’s standing with the legal community.) Such legitimacy bleeds into “moral legitimacy”—whether the court is an institution committed to justice.
If Professor Ziegler and her friends is so worried about the court’s legitimacy, I have an easy solution: Stop attacking it like it’s Satan’s HQ on Earth.
It’s really not difficult. But they won’t. Why?
Because, in the minds of Professor Ziegler and her ilk, the court is not legitimate unless it agrees with their radical, progressive understanding of the Constitution. It’s that simple. Really.
We know this is true because they adore the court of the 1950s and 60s, which was a roving constitutional convention/super-legislature that issued numerous decisions that failed even to refer to the constitutional text. (A court that cares about text? What’s next: Pilots concerned with where the ground is?) Alas, the beautiful decisions that emerged from such halcyon days are now in mortal peril from a court that will—“Hold me, Mommy!” Professor Ziegler weeps—actually pay attention to the relevant texts when deciding cases and consider itself bound to apply them, not whatever it feels like imposing on the rest of us based on how a majority feels after breakfast.
What a concept!
Professor Ziegler actually hits on two important reasons for the why the court is (thankfully) ignoring her and her buddies.
The first is that the Federalist Society created an alternative incentive structure for the justices. Simply put, the conservative justices, to the extent they care about how they’re perceived, are more inclined to want approval from the FedSoc crowd than from Ivy League law professors. As it should be—and should have been for much longer than just the law few years. These people loathe conservatives. There is zero reason—none at all—to pine after their approval, like a lovesick teenage girl.
Newsflash: They will never like you. Move on with your life, and do your job correctly while you’re at it—say what the law is. Nothing more.
That first bit of insulation amounts to foot-stamping-and-breath-holding from Professor Ziegler. She’s livid that the Right managed to build a a reasonably successful institution that has not been coopted by the leftist Borg.
What nerve! she seethes.
The other reason Professor Ziegler identifies for why the court doesn’t cater to her every whim is because the Founders (to her horror, I’m sure) actually knew what they were doing. As Professor Ziegler laments:
The justices seem equally unmoved by the thought of damaging the Court’s legitimacy with the public. The reasons for this are clear. Despite progressives’ anger at the Court and their advocacy for reforming the institution—demanding term limits and the addition of more justices, among other things—the structure of the Senate means that none of these possibilities is a live threat to the justices now, or potentially ever. President Joe Biden’s commission to consider Court reforms did not settle on a solution, much less embrace the idea of adding justices. And the Senate would hardly entertain such an idea even if the commission had pushed it to. With Biden battling low poll numbers and the prospect of a traditional midterm slump, Democrats seem unlikely to gain the votes for Court reform this year.
The Constitution is actually effective at implementing life tenure?! That’s not fair!
My point is, once you understand what these types of articles are actually saying—“I’m going to say horrible things about you until you do what I want”—it’s much easier to ignore them, and to respond to their social blackmail effectively.
There is no reason to worry that a bunch of progressive elites don’t like you. They were never going to. You were always going to be, at best, tolerated—but only so long as, and to the extent that, you assiduously toed their line.
But tip-toeing through life and shrinking oneself into a smaller target so as not to anger the powerful is no way to live.
I for one am glad that the Court seems increasingly willing to stand tall. More of that, please.
Hear hear! I hope the Court has the courage of its convictions (or rather, the courage to uphold the convictions of the Framers). On the other hand, the Left's ceaseless attacks are consequential. They may one day enable a Democratic President to disobey the Court. If I were the Justices, I would indeed be worried about that.
Complaints about how the Court doesn't obey the will of the people (similar to complaints about how its makeup is not reflective of the population) always strike me as odd, given that the Court is not meant to be a representative body. The reason that the Justices have life tenure, and are not elected by the people, and that the most representative part of government (the House of Representives) plays no role in their appointment, is that the Court isn't meant to be a representative organ. As you note here, its role should be to read and apply the text, texts which can always be alterred by our legislative representatives should we want them so to be. The continued push to have the Supreme Court resolve all our problems for us, while our actual elected representatives collect a check for complaining about it, is also an important reason why the Court's "legitimacy" is in question. The more the Court does its actual job the more people will think that it is illigitimate, because they have been led to believe that it exists to serve a function it was never intended for.