Taking Judicial Legitimacy Seriously

Chief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it.

To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, social science research makes clear that the legitimacy of the Court is not compromised so long as the Justices exercise their authority in a principled way. What the Justices may not do is be perceived as behaving strategically.

Note the irony. In recent years, Chief Justice Roberts, and particularly his opinion in Sebelius, is seen as the high water mark of strategic decisionmaking. A second view of judicial legitimacy equates legitimacy with compliance and acceptance of judicial outcomes precisely because the Court issues them. The data is complex but history is also on the Court’s side.

Consider in this vein the reception to Baker v. Carr, or Bush v. Gore, or Shelby County v. Holder. Why does Chief Justice Roberts raise concerns about judicial legitimacy? The Essay concludes that this is in itself a strategic move and a selective concern. There is very little the Court can do to compromise its legitimacy.

Concerns about judicial legitimacy are either ignorant of what judicial legitimacy is and the vast body of work that explains it, or else it is a feigned worry designed to disguise a substantive agenda.