Benjamin Franklin described the structure of the then-new American government as “a republic, if you can keep it.” That is to say, the very notion of American democratic governance is fragile and could collapse if imperiled.
The current Supreme Court is consistently putting the constitutional guardrails of its power to the test, threatening the integrity of the American experiment. As noted by Yale University political science professor Gordon Silverstein, the Supreme Court is a delicate institution: “There are risks when your power rests on your legitimacy.”
The Court only has power insofar as the public takes its decisions seriously. Consequently, the Court is currently at a pivotal moment to rescue its legitimacy before lack of public trust in the institution poses an existential threat to the American republic.
A 2024 Pew Research poll found that the share of Americans who disapprove of the Supreme Court is close to an all-time high; the current disapproval rating of the Court is 51%, compared to just 16% three decades ago. While this is not an issue in and of itself, it is indicative of the Court losing its persuasive power.
“The Court is very different from Congress, in that it has to give reasons. That’s where its power comes from. It must persuade the other branches—the executive to enforce their decisions and the legislature and bureaucracy to abide by its decisions,” said Silverstein.
A notable example of a Court decision challenged by executive power occurred during Andrew Jackson’s presidency. In response to a series of rulings in the early 1830s by the Marshall Court that acknowledged certain rights of Indigenous communities in Georgia, Jackson is rumored to have remarked, “John Marshall has made his decision, now let him enforce it.” The implication of Jackson’s statement is clear: if the Court delivers a decision that conflicts with a president’s political goals, other branches of government and the population as a whole can simply ignore it.
The Court must be seen as legitimate enough that its decisions are not called into question, even if they are unpopular with other branches of government. If its decisions are rendered meaningless by a lack of trust, this could leave the other branches unchecked by the Court, leading to a dangerous redistribution of government power. Consequently, the limited American government, lauded for its structure, could ultimately perish.
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Two problems plaguing the contemporary Court’s legitimacy include a reliance on opinions that concur or dissent in part and the overuse of the “shadow docket,” rulings that are unsigned with no explanation.
Inconsistent, splintered opinions for a single ruling can obscure the public view of a case. As put by Silverstein, when the Court lacks uniformity in its opinions, “there’s no clarity, and it’s very hard to have a sense of the opinion of the Court and the consensus of the Court. Unanimity by the Court during the civil rights movement after Brown was one of the things Chief Justice Warren spent his greatest amount of time on.”
In the school desegregation cases mentioned by Silverstein, the Warren Court worked tirelessly to secure unanimity, recognizing that its legitimacy was at stake. Warren recognized that cases like Brown v. Board of Education and Bolling v. Sharpe were likely to be unpopular among the local governments that implemented segregation laws in the first place. The Court needed to assert its full authority. Even a single dissenting opinion could give pro-segregation local governments a legal foothold to delay desegregation.
Through strong internal leadership and strategic compromises, Warren unified the Court, delivering a powerful mandate for desegregation.
In contrast, the Roberts Court has struggled to achieve consistency in legitimizing its opinions, particularly those that intersect with politics. For example, in Trump v. United States, which found that presidents have legal immunity for official acts while in office, the Court handed down a total of five opinions: the opinion of the Court, two concurrences, and two dissents. If the Court is so fractured while handing down a controversial decision with significant political implications, it is difficult for the public to take such a decision seriously.
Silverstein described a position frequently articulated by former Justice Antonin Scalia: the Court must maintain a “bank of legitimacy” which it accumulates over time so that it can be spent on controversial, consequential cases, such as Bush v. Gore. Arguably, the Roberts Court is on the brink of overdrafting its account of legitimacy for these types of consequential cases. By handing down too many fractured decisions with political implications, its legitimacy is teetering at the edge of an ominous precipice.
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The overuse of the “shadow docket” is also undermining the public’s ability to take the Court’s decisions seriously. Following Justice Ruth Bader Ginsburg’s death in 2020, the Court’s use of unexplained rulings and orders has more than doubled. Given the “judicial power” vested in the Court by Article III of the Constitution, the Court issues stays and injunctions in response to emergency petitions. However, the Court has increasingly used this power to make what are effectively substantive decisions without full briefing or oral argument, as is typical of cases on its merits docket.
Silverstein said, “The appeal of the Court is that it is a genuinely deliberative body, and so if they can negotiate and come up with coherent and consistent rulings, then that can give the Court the greatest degree of legitimacy.” The Roberts Court is straying away from being “deliberative” in far too many of its cases through its excessive use of the shadow docket.
For example, in Republican National Committee v. Mi Familia Vota (2024), the Court partially stayed a lower court’s decision, which had blocked a 2022 Arizona law making voter registration more difficult. The Court’s order contained no rationale, despite affecting how voter registration functions in Arizona.
Decisions like this have become far too ubiquitous. If the Court’s power lies in its ability to persuade, unexplained rulings are essentially meaningless, giving the public and other branches of government little reason to care about them.
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The means by which these problems could be addressed likely come from within the Court itself. Court reforms such as term limits for justices, as proposed by President Joe Biden, could originate from Congress, though legal consensus suggests that this would require a constitutional amendment. However, the most immediate remedies to the Court’s legitimacy—paring down the number of fractured opinions and shadow docket cases—must originate internally.
Silverstein suggested that the cure may be Chief Justice Roberts devoting his leadership to the Court’s legitimacy. He said, “If Roberts is concerned about his own legacy, then at some point he’s not going to want the Court’s reputation to collapse on his watch. It’ll be his responsibility. We might see that move to the middle again through leadership from within the Court.”
The Court may be due for some external reforms from the legislature, but the most immediate course correction for its legitimacy is in its own hands.
Silverstein pointed out that such reforms “are more likely to happen not in a moment of crisis, but actually in a moment of calm and balance, when both parties feel reasonably comfortable with the Court.” Given the current divisions within the American government and general public, these “good feelings” reforms are unlikely to occur anytime soon. The Court must undergo significant introspection to preserve itself and maintain any semblance of a “bank of legitimacy” to draw from if necessary.
The Supreme Court is dangerously close to permanently losing the confidence of the American populace. Its decisions are meaningless if they are not perceived as legitimate, a threat by which it is significantly imperiled. History will undoubtedly remember how the Court addresses its lack of perceived legitimacy today—whether it extricates itself from rampant distrust or existentially threatens the American republic.