Legitimacy is a complex and puzzling concept. But in legal discourse, we have an intuitive sense that illegitimate means something more than erroneous or incorrect. The term signifies something absolutely without foundation and perhaps ultra vires. So when a government institution or organization lacks legitimacy, it may no longer be worthy of respect or obedience.
Given this intuition, it is striking how many commentators — including prominent constitutional scholars, a former Attorney General, and current members of Congress — have recently questioned the legitimacy of the United States Supreme Court.1 Indeed, some critics suggest that the situation is so bad as to warrant extreme measures: it may be time to rethink life tenure,2 take away broad swaths of federal jurisdiction,3 impeach Justices,4 disobey Supreme Court decisions,5 or — most commonly — “pack” the Court with additional members.6
For those who study the federal judiciary, this onslaught is jarring. Although the Supreme Court has been subject to attacks in the past, recent decades have been a period of relative calm. Indeed, many court-curbing measures — including court packing and disobeying court orders — have been off the table since the mid-twentieth century.7
But things seem to have changed — and in very short order. We do not have to look far to see why: critics point to defects in the judicial appointments process. In 2016, the Republican-controlled Senate refused even to hold hearings on Judge Garland, President Barack Obama’s nominee to fill the seat left open after Justice Scalia passed away.8 Thus, critics argue, President Donald Trump’s subsequent nominee Justice Gorsuch sits in a “stolen” seat.9 The 2018 confirmation process for Justice Kavanaugh was said to be problematic in several respects: Republicans withheld information about the nominee’s service in the White House10 and failed to adequately investigate charges of sexual assault;11 and the nominee himself offered what many saw as openly partisan testimony in responding to the latter allegations.12 Through these confirmation fights, the critique goes, Republicans used underhanded means to place a conservative majority on the Supreme Court, rendering the institution itself (and, presumably, its decisions) less legitimate.13
Critics argue that this “constitutional hardball”14 deserves a response in kind, including even previously unthinkable structural reforms such as court packing.15 But — crucial to the analysis here — many critics also suggest that the Supreme Court itself may be able to ward off these court-curbing efforts and the attacks on the Court’s legitimacy. One or more Justices could moderate their jurisprudence in order to preserve the Court’s public image.16 Commentators point to National Federation of Independent Business v. Sebelius17 (NFIB), where Chief Justice Roberts reportedly switched his vote on the individual mandate in order to safeguard the Supreme Court’s reputation.18
What should we make of the charges of illegitimacy? And would the suggested court-curbing “solutions” restore, or further undermine, the Court’s status? Perhaps most pressing, can the Court itself take steps to preserve (or restore) its legitimacy?
Enter Professor Richard Fallon’s Law and Legitimacy in the Supreme Court.19 Few publications come upon the legal scene at a more essential time. With characteristic analytical clarity, Fallon dissects the term “legitimacy” and gives us a vocabulary and framework for thinking about claims of illegitimacy. Fallon divides legitimacy into three categories: sociological legitimacy, moral legitimacy, and legal legitimacy. Sociological legitimacy depends on an external perspective: Does the public view the legal system and its institutions as worthy of respect and obedience (p. 21)? Moral legitimacy is an inherently normative concept, focusing on whether people should treat a legal regime or its institutions as worthy of respect and obedience; for example, by virtually any measure, the Nazi regime in Germany was not a morally legitimate government (pp. 21, 24). Finally, legal legitimacy depends on an internal perspective. Thus, a Supreme Court decision is legally legitimate if the Justices use interpretive methods that are generally accepted within the legal culture (pp. 35–36).
The heart of Fallon’s analysis — and the central contribution of the book — is his evaluation of Supreme Court decisionmaking. To be sure, an analysis of judicial decisions only makes sense if the Court operates in a legal system that is sociologically and morally legitimate (pp. 83–87). Accordingly, Fallon asserts, as important preliminary steps, that the U.S. constitutional system is externally legitimate (pp. 23, 29). But Fallon then turns to the internal (legal) legitimacy of Supreme Court opinions.20 From this vantage point, Fallon offers us a novel and exciting way to think about both constitutional interpretation and judicial decisionmaking. Rather than offer another interpretive method, Fallon steps back and gives us a formula for evaluating the legal legitimacy of various existing approaches to constitutional interpretation (pp. 142–48). In Fallon’s view, many different interpretive methods may be legitimate (p. 131). But a Justice should apply her preferred approach consistently across cases, with candor and in good faith (pp. 129–32, 142–48).21
Building on Fallon’s work, this Book Review Essay examines the recent attacks on the Supreme Court and the proposed solutions. I argue that in politically charged moments like today, the Court may face a legitimacy dilemma — one that the Justices cannot easily remedy themselves. This dilemma is twofold. Consider, first, the assertion that one or more members of the Supreme Court should modify their jurisprudence in order to preserve the Court’s legitimacy. This argument underscores an important tension between the internal (legal) and external (sociological) legitimacy of the Supreme Court.22 On the one hand, there is some evidence that Justices do in fact “switch” their votes in response to public pressure — that is, to preserve the Court’s sociological legitimacy. The Justices may have done so in reaction to President Franklin Roosevelt’s Court-packing plan and in the wake of the “massive resistance” to Brown v. Board of Education. On the other hand, there is reason to doubt that such “switches” are legally legitimate.23 Assuming such changes occur (as political science and media accounts assure us they do24), the Justices do not have a consistent or principled approach, and they are most certainly not candid about “caving” to public pressure. To the contrary, the Justices (at least publicly) deny the influence of such external pressure. Thus, there is one legitimacy dilemma: in politically charged moments, the Justices may feel pressure to sacrifice the legal legitimacy of their judicial decisions in order to preserve the sociological legitimacy of the Court as a whole.
Much of this Review Essay will focus on this first legitimacy dilemma. But our current political moment exposes a second dilemma as well. To a considerable degree, the Supreme Court’s sociological legitimacy depends on the behavior of political actors. Thus, as some political scientists have suggested, the President and the Senate can build the institutional reputation of the Court through their conduct in the nomination and confirmation process.25 But as recent events underscore, that same process can also undermine the Court’s reputation. The Supreme Court’s second dilemma is that there is very little it can do about the partisan maneuvering that occurs across First Street.
The Review Essay proceeds as follows. Part II introduces readers to Fallon’s superb piece of scholarship. Part III is the heart of the Essay. Building on Fallon’s work and drawing on political science research and history, the Essay argues that, in politically divisive moments like today, the Justices face a potential conflict between sociological and legal legitimacy. The Justices may not be able to preserve one form of legitimacy without sacrificing another. Part IV briefly discusses the Supreme Court’s second legitimacy dilemma — that, to a large extent, its institutional reputation depends on the actions of the other branches of government. The Essay suggests that the best way to protect the Supreme Court’s long-term sociological legitimacy may be to restore a certain level of moderation and good faith in Congress and the presidency.
II. Fallon’s Typology of Legitimacy
Fallon’s Law and Legitimacy in the Supreme Court is a tour de force. Throughout the book, Fallon displays a mix of realism and idealism that is emblematic of much of his earlier work.26 Fallon insists that judicial decisions are — and must be — bound by law, even as he recognizes that the law may be influenced by many factors (text, history, precedent, and normative values) (pp. 89–96, 122). With this “big tent” approach to judicial decisionmaking, Fallon offers us a formula for evaluating the legal legitimacy of various interpretive methods.
To set the stage, Fallon emphasizes that the legal legitimacy of Supreme Court decisions depends in large part on the sociological and moral legitimacy of the surrounding legal system (pp. 83–87). Accordingly, at the outset, Fallon argues that the U.S. Constitution must be seen as legitimate by the public (pp. 22–35, 83–92). Drawing on legal positivism, Fallon concludes that the public does accept the Constitution as binding law (pp. 85, 89–92). Moreover, although the Constitution has flaws (and the original version had even greater defects, given its acceptance of slavery), Fallon asserts that the document is minimally morally legitimate (pp. 27, 29). Accordingly, the U.S. constitutional system deserves a measure of respect and obedience from the populace (pp. 31–32).
This discussion lays the groundwork for the remainder of the book. If the U.S. constitutional system is sociologically and morally legitimate, then Supreme Court decisions are legally (and morally) legitimate if they stay within the bounds of that scheme (pp. 98–102).27 But the constitutional text is underdeterminate in many crucial respects (pp. 47–70). Accordingly, the Justices have considerable discretion in individual cases. Fallon argues that the scope and nature of this judicial discretion depend in large part on the actual practices of our legal system (pp. 89–92). As Fallon observes (and as any litigator well knows), our constitutional practice is “relatively fluid and open” (p. 91). Accordingly, Fallon reasons that Justices in our legal system may (legitimately) be guided by a mixture of sources and influences, including history, precedent, moral values, pragmatism, and even ideology (pp. 72–77, 91, 122). This generous list of acceptable interpretive sources sets the stage for Fallon’s “big tent” approach to legal legitimacy.28
Fallon assumes that interpretive method is a matter for each individual Justice to decide (p. 131). (Notably, throughout this Review Essay, I make the same assumption.29) That is, each member of the Court has the discretion to adopt an interpretive method that she views as most compelling. Under Fallon’s formula (which he dubs “Reflective Equilibrium Theory”), an interpretive approach is legally (and morally) legitimate as long as the Justice adopts a reliable and consistent method for dealing with historical evidence, makes reasonable moral judgments, and applies her approach consistently and in good faith across a range of cases (pp. 129–32, 142–48).30 But these final requirements of consistency and good faith are crucial (p. 130). A Justice must stick to her preferred method, even when it leads to results that she does not favor. “In appealing to a methodological premise in one case, a Justice . . . implicitly affirms his or her commitment to abide by that same premise in future cases, whatever conclusion it might yield . . .” (p. 130). Such consistency will make the Justice’s decisions more acceptable, at least within the legal community: “When the Justices adhere consistently to reasonable positions, we can respect their decisions, even if we think that both their methodological commitments and their substantive conclusions are ultimately mistaken” (p. 131).
To be sure, Fallon also insists that the Justices should not be dogmatic. Instead, each Justice should be open to modifying her interpretive approach in exceptional cases (pp. 126–27). But to prevent this exception from swallowing the rule of consistency, Fallon advocates a duty of candor: “A demand for publicity or candor in acknowledging a change of methodological view, and the reasons for it, would provide a significant safeguard against abuse” (p. 146).
Through this inclusive definition of legal legitimacy, Fallon aspires to bring together an increasingly divided legal community. One can see this overarching goal in Fallon’s discussion of originalism. However much we may dislike a particular interpretive method (as Fallon surely dislikes originalism31), we can see it as legitimate — and respect a Justice who adopts that interpretive approach and applies it consistently, with candor, and in good faith (p. 146). Thus, Fallon writes: “In an era of hermeneutic suspicion, Reflective Equilibrium Theory . . . encourages interpretive charity: it invites us to view our coparticipants in constitutional argument as proceeding in good faith” (p. 148).32
In offering this constitutional theory, Fallon understands that the Justices work under conditions of institutional constraint. For example, a Justice is constrained by the views of her colleagues; issuing a decision requires at least a five-member majority. And under Fallon’s approach, every Justice may have her own individual interpretive method. So what to do when the methods conflict? Fallon offers an important (albeit limited) caveat to the rule of consistency: “[A] Justice reasons in good faith as long as what she writes or joins is consistent with her actual substantive and methodological beliefs, even if her actual beliefs would permit her to go further or say more” (p. 152).33 However, if a Justice “cannot justify an outcome consistently with methodological premises that she believes valid, then she cannot join” the opinion (p. 153).
Fallon also emphasizes that the Justices are constrained by the surrounding political environment (pp. 105, 109–14). The political branches have considerable (if disputed) power over the size, jurisdiction, and budget of the Supreme Court.34 In some respects, such constraints serve a beneficial purpose by reminding the Court not to exceed its constitutional authority. As Fallon notes, “a judicial directive purporting to raise or lower interest rates solely for policy reasons or to invade Iran would not be recognized as legally authoritative” (p. 111).
But Fallon expresses uncertainty about how these political constraints may otherwise influence the Court. At one point, he acknowledges the possible tension between the internal (legal) legitimacy of Supreme Court decisions and the external (sociological) legitimacy of the Court itself. Under the threat of sanctions, “the Justices might feel externally constrained to adopt positions that they think constitutionally erroneous” (p. 111). Fallon asserts that “[t]his possibility . . . is an unhappy one” but insists that it is “inescapable. Any scheme of constraints necessarily risks fallibility in the constraining institutions that it employs” (p. 111).
Although Fallon does not return to this point in his discussion of legal legitimacy, I believe that he has put his finger on an important tension. Moreover, the tension between legal and sociological legitimacy is likely to be at its apex during times like our current political moment, when there are deep divides — both in the country and on the Court. I contend that during such politically charged moments, the Justices may not be able to protect the Court’s sociological legitimacy without sacrificing the legal legitimacy of their decisions (or vice versa). This tension, I argue, is the heart of the Supreme Court’s legitimacy dilemma.
III. The Tension Between Sociological and Legal Legitimacy
To understand the tension between sociological and legal legitimacy, we need a better grasp of the former. Why does the Supreme Court’s external legitimacy even matter? Political scientists agree: The judiciary has no army; it must rely on others to obey its decrees. Government officials and the general public are more likely to comply if they view the Court as “legitimate” — that is, as an institution that does and should have the power to affect legal rights and obligations.35 It is particularly crucial that those who disagree with a given decision view the Court as legitimate; such disappointed individuals will respect the adverse ruling if they view the institution itself as authoritative. Thus, political scientists have a refrain: “Legitimacy is for losers.”36
But what happens when the same group turns out to be the “loser” in case after case? Both political science research and history suggest that such situations are likely to be risky for the Court. Moreover, this research also suggests that the Justices can best preserve the Court’s sociological legitimacy — and ward off any attacks — by moderating their jurisprudence, at least in some cases. But as I argue below, such changes may not be legally legitimate.
In some ways, it is surprising that the Supreme Court was not already under attack. Party polarization has increased dramatically since the 1990s, with the Republican Party growing more conservative and the Democrats moving closer to their progressive base.37 Meanwhile, the Court has addressed some of the most divisive issues in American politics: affirmative action,38 abortion,39 campaign finance,40 gun rights,41 and same-sex marriage.42 Although Gallup polls suggest that the Court’s public approval rating has dropped,43 the overall level of confidence in the Court has nonetheless remained reasonably high, particularly as compared to Congress and the President.44 Thus, even in this polarized era, the Court has largely retained its reputation with the public.
There is an intense debate among political scientists about the source of the Supreme Court’s sociological legitimacy. Many scholars argue that the Court enjoys broad “diffuse support” from the public.45 Under this view, the public generally sees the Court as distinct from the political branches, trusts the Court to make reasonable decisions, and treats its decisions as authoritative, regardless of the ideological valence of a specific ruling.46 But other scholars have recently challenged this vision. The challengers argue that members of the public tend to support the Court if it rules “their way” in salient cases.47 That is, “individuals grant or deny the Court legitimacy based on the ideological tenor of the Court’s policymaking.”48
This Review Essay does not seek to weigh in on this debate. For my purposes, it is important that both camps agree on two things. First, even advocates of diffuse support acknowledge that public support is sticky but movable. A series of “adverse” decisions can lessen the Court’s support among a particular group.49 Second, and relatedly, both camps also agree that the Court’s public image may be influenced by its decisions in salient cases, at least over time.50 Accordingly, if the Supreme Court repeatedly issues “conservative” (or “progressive”) decisions in high-profile cases, its institutional reputation will eventually decline with the “loser” group.51
Until recently, “diffuse support” scholars have insisted that there is no reason to worry about this potential risk to the Court’s sociological legitimacy. After all, with swing Justices (like Justices O’Connor and Kennedy), the Supreme Court has reliably issued a mix of “progressive” and “conservative” decisions in salient cases.52 In the past fifteen years, although progressives may have disliked the Court’s rulings on issues such as gun rights and campaign finance, they had good reason to cheer the jurisprudence on same-sex marriage and affirmative action; conservatives could do the reverse.53 That is, there have been no repeat “losers.” But this research also suggests that if the Court’s decisions in high-profile cases begin to point in only one direction, the “losers” might over time see little reason to treat the Court as a legitimate source of authority.
Notably, Justice Kagan thoughtfully articulated this potential “legitimacy deficit” during a speech in October 2018 (as the confirmation hearings for Justice Kavanaugh were winding down). She stated that “[p]art of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country.”54 The Justice went on: “It’s been an extremely important thing for the court that in the last 40 years, starting with Justice . . . O’Connor and continuing with Justice Kennedy, there has been a person who found the center,” whose votes were hard to predict.55 Justice Kagan questioned whether the Court would continue to be seen as “impartial and neutral and fair” in this “divided time,” absent a swing Justice.56
Political science research suggests that, in our polarized era, the Supreme Court has maintained its sociological legitimacy because it has reliably issued a mix of conservative and progressive decisions in high-profile cases. This research thus indicates that the current Court can best preserve (or restore) its public reputation if one or more members moderate their jurisprudence — that is, become “swing” Justices.
Recent commentators have encouraged the Justices to follow (what they view as) the “example” of Chief Justice Roberts in NFIB: According to media reports, the Chief Justice believed that the Affordable Care Act’s individual mandate was unconstitutional.57 But after a barrage of criticism declaring that a ruling against President Obama’s signature legislation would destroy the Court’s reputation, the Chief Justice opted to change his vote; he then relied on a “strained” theory that the mandate was valid under the federal taxing power.58 All this, to protect the Court’s public image.
In other politically charged moments, the Justices are said to have changed their positions to protect the Court. That is, one or more Justices may have voted in a way that they deemed legally incorrect in order to safeguard the Court’s public reputation. To be clear, I do not seek to show that in any of these cases, a Justice did in fact “switch” his vote. Personally, I am skeptical of the story that Chief Justice Roberts voted against conscience in NFIB (as apparently is Fallon).59 Instead, I offer these examples to tee up a central question of this Review Essay: Is such a “switch” legally legitimate? I argue that, even in our open and fluid legal practice, there is good reason to doubt the legal legitimacy of “switches” to protect the Court.
1. Historical Examples. —
(a) The New Deal and Court Packing. — In the wake of the stock market crash of 1929 and in the midst of the Great Depression, President Roosevelt promised to usher in a new “economic constitutional order.”60 He offered the nation a “New Deal.” The Supreme Court, however, proved to be a substantial obstacle to President Roosevelt’s progressive agenda. Thus, after a series of losses in 1935 and 1936,61 the President proposed an extraordinary judicial reform: a plan to pack the Supreme Court with up to six additional members.62 In his fireside chat on March 9, 1937, President Roosevelt informed the country that “new blood” was needed, because the Court was “acting not as a judicial body, but as a policy-making body” in invalidating federal and state laws.63 “[W]e must take action to save the Constitution from the Court and the Court from itself.”64
Although there was opposition in Congress, there was also considerable support for the Court-packing plan, and it seemed likely to pass the heavily Democratic Congress.65 But soon after the plan was announced, the Supreme Court issued a series of decisions upholding state and federal economic regulations.66 To be sure, there is considerable debate over the reason for the Court’s change in direction.67 The Justices voted to uphold at least one of these laws (in West Coast Hotel v. Parrish68) two months before the Court-packing plan was announced.69 But many scholars have argued that the Court’s overall change in direction was at least in part a reaction to public pressure, and particularly President Roosevelt’s plan.70 Indeed, the critical vote in these cases — that of Justice Owen Roberts — has been famously dubbed “the switch in time that saved the nine.”71
(b) Brown and Interracial Marriage. — One year after the Supreme Court’s 1954 decision in Brown v. Board of Education, a couple challenged Virginia’s ban on interracial marriage,72 the same law that was later struck down in Loving v. Virginia.73 Naim v. Naim74 involved a white woman and a Chinese man75 (who faced deportation if the marriage was declared invalid76). Notably, the Supreme Court at that time had mandatory appellate jurisdiction over the couple’s appeal; accordingly, the Court could not avoid the case by simply denying certiorari.77
Nevertheless, several members of the Court were determined to dispose of the case without reaching the merits. They were concerned that a decision in Naim might exacerbate the tensions surrounding Brown.78 The Justices assumed that the Court had limited political capital; if the Court issued another major civil rights ruling, the Court would likely face (more) outright defiance of Brown.79 Thus, Justice Frankfurter wrote an impassioned letter to his colleagues, urging that “moral considerations far outweigh the technical considerations in noting jurisdiction” over the appeal.80 “The moral considerations are, of course, those raised by . . . the Court’s responsibility in not thwarting or seriously handicapping the enforcement of its decision in” Brown.81 According to Justice Frankfurter, if the Court reached the merits in the current political environment, it would have to uphold Virginia’s ban on interracial marriage: “[T]o throw a decision of this Court other than validating this legislation into the vortex of the present disquietude would . . . very seriously . . . embarrass the carrying-out of the Court’s [desegregation] decree.”82
Several Justices objected to dismissing the couple’s appeal. Justice Black drafted a dissent, which would have made clear that the Court indeed had jurisdiction and was required to hear the federal constitutional claim.83 But ultimately, he relented.84 Accordingly, the Court dismissed the couple’s appeal, asserting that there was an inadequate record to consider the federal question.85 A few months later, the couple again sought Supreme Court review, and the Court again rejected the appeal as “devoid of a properly presented federal question.”86 Countless commentators have described the Court’s disposition in Naim as “specious,” “ridiculous,” and “wholly without basis in the law.”87
2. Are Switches Legally Legitimate? — Recent commentators have suggested that one or more members of the current Supreme Court should modify their jurisprudence in order to ward off the attacks on the Court — and thereby protect its sociological legitimacy.88 There is some evidence that Justices have taken that approach in the past. But is it legally legitimate for a Justice to alter her decisions in order to protect the Court’s public reputation? I argue here (and in the next section) that there are strong reasons to doubt the legal legitimacy of “switches in time.”
At the outset, let me be clear about two things. First, I draw here on Fallon’s definition of legal legitimacy, which has both a descriptive and a normative element. At a descriptive level, the practices of the legal community (consisting of judges, lawyers, and legal commentators) indicate the range of legal sources and arguments that are acceptable for any Justice. In this respect, legal legitimacy has a sociological component; a Justice may draw only on legal sources that are deemed to be acceptable by the legal community. Presumably, by relying on such legal sources, the Justices can help ensure that their decisions will be seen as authoritative even by the “losers” (that is, those within the legal community who disagree with a given decision). At a normative level, once a Justice chooses her interpretive method — from among the range made acceptable by our legal community — she must apply that method consistently, with candor, and in good faith.
Second, I want to be clear about what I mean by a “switch.” Consider the story about Chief Justice Roberts’s change in NFIB. The claim is that the Chief Justice believed that the individual mandate was unconstitutional, and yet voted the other way in order to preserve the Court’s public reputation. Likewise, in the New Deal cases, commentators suggest that Justice Owen Roberts changed his vote — and opted to uphold New Deal legislation — to save the Court from President Roosevelt’s Court-packing plan. And in Naim v. Naim, the Justices declined to hear a case where the Court had mandatory appellate jurisdiction on the (implausible) ground that the record was insufficient. In each case, one or more Justices are said to have ruled in a way that they believed to be legally incorrect (under their own chosen interpretive method) in order to protect the Court. In short, a “switch” is precisely the circumstance that Fallon signals (albeit briefly) in his book. Under the threat of sanctions, “the Justices might feel externally constrained to adopt positions that they think constitutionally erroneous” (p. 111).
Even in our open and fluid constitutional practice, it is difficult to justify such a change as legally legitimate. Our practice in many respects condemns “switches” to protect the Court’s sociological legitimacy. The Justices not only fail to acknowledge such changes but also aim to deny that they have altered their votes in response to external pressure.89 Indeed, there are indications that, in our legal culture, “impact on the Court” may not be an acceptable factor in legal analysis at all; that is, a Justice cannot consider such a factor consistently, with candor, and in good faith.90
Consider, for example, the ongoing debate about the reasons behind the “switch in time” of 1937. Why are commentators so captivated by that question? As a legal community, we seem to be uncomfortable with the possibility that any Justice may have changed his vote on the law in reaction to a proposed court-curbing measure. Indeed, in West Coast Hotel v. Parrish itself, Justice Sutherland “obliquely accused an unnamed justice”91 of violating his oath of office by succumbing to external pressure.92
Justice Frankfurter, for his part, made it his mission to dispel any notion that Justice Owen Roberts had “switched” in West Coast Hotel or any other case.93 Apparently at Justice Roberts’s urging, Frankfurter released a letter in which Roberts claimed to have changed his mind about social and economic legislation much earlier.94 As Jeff Shesol writes, “The memo was no mea culpa. Writing in flat, impenitent prose, Roberts sought not to justify the switch but to deny it, contending that his position had remained perfectly consistent all along.”95
In publicizing the letter, Justice Frankfurter suggested that a judge who voted not on the law, but to protect his institution, would lack integrity. Thus, it was “ludicrous” to suggest that “a judge with the character of Roberts” may have changed his “judicial views out of deference to political considerations.”96 Indeed, according to Justice Frankfurter, such “political considerations” were entirely out of place in the judiciary: “That the Supreme Court should not be amenable to the forces of publicity to which the Executive and the Congress are subjected is essential to the effective functioning of the Court.”97 (Remarkably, Justice Frankfurter published these words just after orchestrating the denial of the first plea for relief in Naim v. Naim.98)
Moreover, as Naim illustrates, to the extent that the Justices “switch” their votes out of concern for the Court’s public reputation, they may compromise not only the legal but also the moral legitimacy of their decisions. Although Justice Frankfurter in Naim pointed to one powerful “moral consideration” — protecting Brown99 — the Justices seem to have overlooked the strong moral reasons to adhere to the plain language of the jurisdictional statutes. Naim had tremendous implications — both for the couple who sought constitutional recognition for their marriage and for Mr. Naim himself (who faced deportation). And a favorable decision in Naim could have protected many other interracial couples.100
To be clear, I do not mean to say that the Court’s approach in Naim was normatively unjustifiable. As I underscore below (in section C), that is a challenging — and perhaps unanswerable — question. For now, my goal is to point out that, in seeking to preserve the Court’s sociological legitimacy, the Justices may sacrifice the legal (and perhaps also the moral) legitimacy of their decisions. Naim thus powerfully illustrates the difficult trade-offs that Justices face in politically charged moments — as they feel the pull of competing types of legitimacy.
An additional point crystallizes the tension between legal and sociological legitimacy. As discussed, the political science literature indicates that, in our polarized era, the Supreme Court can best preserve its sociological legitimacy by issuing a mix of “conservative” and “progressive” decisions in salient cases.101 Along the same lines, commentators suggest that one or more Justices can safeguard the Court’s public reputation by modifying their jurisprudence in some number of cases. That is, a Justice should transform herself into a “swing Justice,” even if that does not accord with her preferred interpretive method.
But from the perspective of legal legitimacy, this suggestion creates a deeply troubling picture. Under this view, a Justice cannot focus on the case or controversy before her. Instead, she must be thinking strategically about the range of high-profile cases before the Court. She can vote in a “conservative” direction in one or more such cases only if she votes in a “progressive” direction in others. To put the point in concrete terms, the argument seems to go as follows: Although Chief Justice Roberts (allegedly) opted to “switch” in NFIB to uphold the Affordable Care Act’s individual mandate, he could just as easily have switched in Shelby County v. Holder102 to uphold a key provision of the Voting Rights Act.103 Either way, the vote helped compensate for cases like Citizens United.104
Such strategic (and secretive) vote trading is antithetical to the way in which many of us conceive of Supreme Court decisionmaking. (And, to repeat, I do not believe the Chief Justice would approach his job in this manner.105) As Fallon observes, it violates norms of our constitutional practice for the Justices to trade votes with one another (p. 103); it seems just as extraordinary for a Justice to strategically trade her own votes across cases. A Justice could no longer focus on what (according to her chosen interpretive method) was the correct legal answer in a given case; instead, prior to casting her vote, she would need to consider the mix of high-profile cases before the Court. Such vote trading would, at a minimum, violate norms of consistency, good faith, and candor. At the extreme, such a practice may even be at odds with the case or controversy requirement of Article III.106
3. In Search of an Interpretive Theory? — As the foregoing discussion suggests, there are good reasons to question the legal legitimacy of “switches.” Moreover, as I argue here, this legitimacy problem remains constant across a range of interpretive methods. Notably, my focus in this section is legal legitimacy; I discuss below (in section C) the difficult trade-off between legal and sociological legitimacy.
At the outset, we should recognize that under some interpretive theories, it is plainly legally illegitimate for a Justice to change her vote on the law to protect the Court. For example, under prominent versions of originalism, judges have an obligation to enforce the “original meaning” of constitutional provisions.107 Such an approach should exclude consideration of modern-day public attacks on the Supreme Court.108 Likewise, Professor Ronald Dworkin’s theory of law as integrity, whichinstructs judges to find the “right answer” to legal questions by relying on text, history, and “moral principles about political decency and justice,” would seem to preclude a judge from rejecting the “right answer” to preserve the Court’s reputation.109 Indeed, it would be entirely out of character for Dworkin’s godlike Justice Hercules to cave to political pressure.110
But as the historical examples offered here illustrate, even Justices who have a less formalistic (or aspirational) approach to constitutional interpretation aim to deny “switches.”111 Dean Erwin Griswold described Justice Owen Roberts as a “lawyer’s lawyer,” whose approach to constitutional analysis was careful, precedent driven, and pragmatic.112 His approach resembled — or perhaps was an amalgam of — what commentators today might call pragmatism113 and common law constitutionalism.114 Justice Frankfurter, for his part, was heavily influenced by Professor James Bradley Thayer’s theory of deference to the political branches.115 But Justice Frankfurter was not an across-the-board Thayerian; he was willing to invalidate legislation in certain realms (particularly race discrimination, Naim v. Naim notwithstanding).116 And in those decisions, Justice Frankfurter looked to a variety of interpretive sources, including constitutional text, structure, precedent, and historical development (“gloss”).117 Yet even with these relatively fluid approaches, Justices Roberts and Frankfurter both insisted — at least publicly — that it was “out of bounds” for any Justice to change his vote on the law in order to preserve the Court’s reputation. Indeed, Justice Frankfurter declared that it was “essential to the effective functioning of the Court” that it “should not be amenable to [such] forces of publicity.”118
Are there interpretive theories that might accommodate “switches”?119 At first glance, Professor Alexander Bickel’s call for courts to exercise the “passive virtues”120 seems like a good contender. According to Bickel, the Court can use jurisdictional devices (such as standing, the political question doctrine, and certiorari dismissals) to “stay its hand”121 in some cases, so that it can play its full role in other cases, such as Brown v. Board of Education, without enduring too much political backlash.122 Building on that idea, Professor Cass Sunstein suggests that judges can either decline to resolve a case or resolve it in a narrow (“minimalist”) fashion, if the judges worry that a decision might trigger “public outrage.”123
But it is important to recognize the limits of these theories. According to Bickel, the Justices do have “leeway” with respect to jurisdictional doctrines;124 and, for that reason, Bickel’s approach has been heavily criticized as inviting the Court to act “lawlessly.”125 (Notably, Bickel endeavors to justify Naim v. Naim on this ground.126) But in Bickel’s view, when the Supreme Court decides the merits of a case, it must act “on principle.”127 In the same vein, Sunstein asserts that even a judge who is willing to consider “outrage” in fashioning the scope of a decision will “not be inclined to commit himself to an interpretation of the Constitution that he rejects as a matter of principle.”128 Thus, whatever else one thinks of the “passive virtues,”129 neither professor’s theory seeks to justify something akin to Justice Owen Roberts’s (alleged) “switch” from rejecting to upholding New Deal–era legislation or Chief Justice Roberts’s (again, asserted) “switch” in NFIB.
Moreover, the charges that Bickel’s theory invites “lawless” conduct, even with respect to jurisdiction, suggest that many in our legal community would be even more resistant to a theory that aimed to justify switches on the merits. As Sunstein observes, “the informal working theory of judges and lawyers” seems “to make it plausibly outrageous for judges” to modify their jurisprudence in any way in response to public “outrage.”130
Accordingly, at least under existing constitutional theory, there are strong reasons to doubt the legal legitimacy of “switches.”131 But I also want to raise a prudential concern about why one might be wary of a Justice altering her decisions to protect the Court.132 A Justice may not be very adept at predicting the reaction of the public or the political branches;133 accordingly, she might vote against conscience in the “wrong” cases. Indeed, a Justice may tend to overestimate the likelihood of political backlash, particularly if she is worried about the future of her institution. Concerns about backlash could have led the Court to rule differently on one person, one vote;134 prayer in public school; desegregation remedies;135 and even Brown v. Board of Education itself.136
The foregoing analysis has important implications for recent commentary questioning the legitimacy of the Supreme Court — and inviting one or more Justices to “fix” the “legitimacy deficit” by moderating their jurisprudence. These commentators have not been precise about what they mean by “legitimacy,” but it seems clear that they are questioning the Court’s sociological legitimacy. What these commentators have not recognized is that their proposed solution — a change in jurisprudence — could create a “legitimacy deficit” of its own. Under current constitutional law and theory, it does not appear to be legally legitimate for a Justice to vote in a way she deems legally incorrect in order to preserve the Court’s public reputation.
Relatedly, this Review Essay’s account underscores the value of Fallon’s typology of legitimacy. When we stop talking about “legitimacy” in the abstract and understand the different ways in which the concept is invoked, we can begin to examine (possible) tensions among the types of legitimacy. Fallon, for example, argues that the Justices faced a trade-off between legal and moral legitimacy in Bolling v. Sharpe,137 where the Court invalidated public school segregation in Washington, D.C. (p. 37).138 He suggests that the “legal case for Bolling was weak” but that the Court’s decision was justified by the moral imperative of ending segregation (p. 37). When scholars argue that the Court’s disposition in Naim was justified, they seem to be suggesting that the Court properly chose sociological legitimacy over legal legitimacy.139
How often does the Supreme Court face such a “legitimacy trade-off”? Fallon suggests that cases pitting legal against moral legitimacy are “anomalous” (p. 38). Perhaps so. But our history suggests that the tension between legal and sociological legitimacy may be more common. To be sure, it is difficult to answer this empirical question, because the Justices do not acknowledge “switching” their votes. I have discussed several (debatable) episodes. Others might point to, for example, the Court’s backtracking on the procedural protections for suspected Communists in the 1950s,140 as well as decisions on abortion,141 the flag salute and Pledge of Allegiance,142 and affirmative action.143
In cases of conflict between sociological and legal legitimacy, the Justices face a challenging (and unappealing) normative choice. To put the conflict in stark terms, let’s assume for a moment that Justice Owen Roberts did in fact “switch” his vote in the New Deal cases. It may be that his decision preserved (or restored) the Court’s sociological legitimacy long enough that the Court could then issue groundbreaking rulings such as Brown. Conversely, consider the consequences if the Court had not changed direction in 1937. President Roosevelt’s Court-packing plan would likely have been enacted,144 and this structural transformation might have dealt a severe, perhaps even permanent, blow to the Court’s sociological legitimacy going forward. Such a damaged Court may not have had the institutional capital to issue Brown, Loving, or other civil rights decisions that many of us celebrate today.
When I present the choices in these terms, I suspect that many readers have the impulse to say that there must be an answer — a way out of the Supreme Court’s legitimacy dilemma. One of my goals is to suggest that, at least under current constitutional theory, there is no such answer.145
That is not to say that it would be impossible to construct a theory — perhaps a “meta theory” of legitimacy that would guide judges in resolving trade-offs among types of legitimacy.146 Perhaps Fallon’s book and this Review Essay will encourage such efforts. But I do want to offer some cautionary notes for scholars who take up that task. First, it would not be easy to construct a theory that could be administered by the Supreme Court, given its institutional limitations. As I have suggested, the Justices may not be very adept at figuring out when the Court’s sociological legitimacy is sufficiently threatened to create a conflict.147 Second, it may be particularly challenging (absent a significant — and, to my mind, unappealing — change in norms of judicial practice) to construct a theory that could be applied with consistency, candor, and in good faith. It is difficult to imagine a Justice saying openly to a litigant, “The government has violated the Constitution. But we cannot rule in your favor, because the consequences for our institution might be too great.”148
In sum, in politically charged moments, the Justices may face a trade-off. A steadfast commitment to legal legitimacy may put at risk the Court’s sociological legitimacy. Conversely, a steadfast commitment to sociological legitimacy may lead a Justice to compromise the legal legitimacy of her own rulings. That is, I argue, a serious legitimacy dilemma.
IV. An Externally Imposed Dilemma
There is no easy answer to the Supreme Court’s first legitimacy dilemma. But the current Court faces a second dilemma as well — one that the Justices also cannot resolve themselves, because it has an external cause. The partisan actions of the President and the Senate have damaged the Supreme Court’s public reputation.
Notably, this legitimacy problem represents a shift. Historically, confrontations between the Supreme Court and the political branches have typically been ignited by Supreme Court decisions. Thus, President Roosevelt sought to “pack” the Court, because it was invalidating his New Deal programs. After the Supreme Court in Brown sought to put a stop to school segregation, “[t]hroughout the South, governors and gubernatorial candidates called for defiance of court orders.”149 And political actors of all stripes have, at various times, fought for jurisdiction-stripping legislation to combat Court decisions that were out of step with that group’s political base.150
In sharp contrast, the current attacks on the legitimacy of the Supreme Court are not the result of its decisions (although critics are clearly concerned about future decisions). Instead, critics emphasize a preliminary issue: how the Justices came to be placed on the Court. Commentators are particularly troubled by the Supreme Court seat that they believe was “stolen” from Judge Garland.151 Such defects in the judicial appointments process have, critics suggest, undermined the sociological legitimacy of the Supreme Court.152
Although a judicial nominee can certainly control his or her own behavior during the confirmation process, the Supreme Court as a whole can do very little about the partisan maneuverings in the White House and the Senate. Thus, we come to the Court’s second legitimacy dilemma: its institutional reputation may suffer as a result of partisan fights largely outside of its control.153
External causes call for external solutions. But many of the solutions offered to “fix” the Court’s current legitimacy deficit may do more harm than good. That is, these solutions may simply increase the partisan squabbling that has damaged the Court’s reputation. As noted, critics most commonly call for court packing. Commentators argue that as soon as Democrats control the House, Senate, and presidency, they should expand the Supreme Court by adding two (or more) Justices.154 Such packing, the argument goes, would “fix” the wrongdoing of Senate Republicans and restore the former balance on the Court.
There are a few difficulties with these arguments. First, notions like “fix” and “restore” presume a clear normative baseline of “wrongdoing.” To progressives, it may be clear that the Republican-controlled Senate in 2016 acted disgracefully in refusing to hold hearings on an eminently qualified jurist. But to many conservatives, the delay on Judge Garland was justified by prior Democratic wrongdoing — including the abolition of the filibuster for lower court judicial nominations,155 and perhaps even going back to the rejection of Judge Bork.156 I do not seek to weigh in on which narrative is more accurate; I suggest only that what qualifies as “wrongdoing” and “restoration” depends tremendously on one’s perspective.157
Second, and relatedly, we should keep in mind the political science teachings about sociological legitimacy. In our polarized political climate, the Court has maintained its public reputation in large part because it has issued a mix of “progressive” and “conservative” decisions in high-profile cases. But court packing by Democrats seems unlikely to restore that “balanced” Court. Instead, it seems more likely that the Court would transform into an institution that reliably issued “progressive” rulings in salient cases. Many in the legal community might be happy with that result. But it is important to recall that “legitimacy is for losers.”158 It is crucial that those who disagree with the Court’s decisions view the institution as legitimate. It seems doubtful that conservatives today would view a Court “packed” by progressives as any more legitimate than the “losers” in 1937 would have viewed a fifteen-member “Roosevelt Court.”
Instead, it seems likely that conservatives would launch attacks on the Supreme Court (much like those we hear from progressives today) — demanding an end to life tenure, jurisdiction stripping, disobeying federal court orders, and perhaps even additional “packing.”159 In that event, some members of the newly constituted Court might feel pressure to moderate their decisions — lest the Court seem too “one sided” to a substantial portion of the country. That would take us back to the first legitimacy dilemma: one or more members of the Court might compromise the legal legitimacy of their judicial decisions to preserve the sociological legitimacy of the Court.
I believe a better approach is to focus on the political process itself — and to look for ways to improve that process, at least in the long run. This point suggests the need for additional research and thinking. In law schools, we spend a good deal of time discussing the proper role of the judge. We spend far less, if any, time examining how a legislator or President should carry out her constitutional responsibilities. As Professors Vicki Jackson and Neil Siegel have suggested, such court-centrism ought to change; today, we need a “general account of the normative expectations of elected representatives in a constitutional democracy.”160
To be sure, some readers may assert that it is hopeless to construct an aspirational vision of a legislator. There seems to be an assumption among many that Congress is irredeemably broken.161 But there is a deep irony here. As the discussion in Part III should make clear, many legal scholars have already adopted an aspirational vision of a judge — one that no judge can easily satisfy, at least not in all circumstances. Under existing constitutional theory, there are strong reasons to doubt that it is legally legitimate for a Justice to “switch” her vote to protect the Supreme Court’s reputation. Yet real-world Justices seem to have done precisely that on some (disputed) number of occasions. Perhaps what we need in law school is less aspirational thinking about judges and more aspirational thinking about legislators. After all, we need a standard before we can assess the extent to which any given lawmaker satisfies it.
Such a normative account seems particularly crucial in the context of the judicial appointments process. The recent confirmation fights underscore the importance of restoring moderation and compromise in both the White House and the Capitol. To be sure, restoring (or building) norms is a long-term project. But I suggest that this is a project worth undertaking. The best way to protect judicial legitimacy going forward may be an increased emphasis on the proper role of a lawmaker.
Fallon’s Law and Legitimacy in the Supreme Court is a masterful piece of scholarship — and a great service to the legal community. At a time when many individuals have begun to question the legitimacy of the Court itself, Fallon gives us a vocabulary and framework for evaluating these claims. But Fallon does something more: his work serves as a model for “interpretive charity.” Fallon encourages all members of the legal community to treat one another with mutual respect and concern. That is, we should view different legal arguments and interpretive methods — even those with which we strongly disagree — as, well, legitimate. In our deeply divided society, such a sentiment is desperately needed. My hope is that others will take up Fallon’s call to “view our coparticipants in constitutional argument as proceeding in good faith” (p. 148).
* Professor of Law, William & Mary Law School. I am grateful to Charles Barzun, Will Bau-de, Curt Bradley, Aaron Bruhl, Josh Chafetz, Erwin Chemerinsky, Erin Delaney, Neal Devins, Richard Fallon, Howard Gillman, Mark Graber, Debbie Hellman, Alli Larsen, Sandy Levinson, Gillian Metzger, Henry Monaghan, Mike Nelson, Jim Pfander, David Pozen, Rich-ard Re, Suzanna Sherry, Neil Siegel, and Tim Zick for comments on earlier drafts. This project was presented at a roundtable on judicial administration and judicial process at Duke University School of Law and at the Twenty-First Annual Federalist Society Faculty Conference. I am grateful for the comments from participants at those events. I also want to thank the terrific editors of the Harvard Law Review and the students in my Congress and the Courts seminar for their thoughtful comments about the challenges facing the judiciary.