Legitimacy. The word has dominated discussion of the U.S. Supreme Court for years. Some, mostly on the left, claim that the court has lost its legitimacy. The debate on this question even has spread to the court itself, with comments on the matter made by Justices Elena Kagan, John Roberts and Samuel Alito over the summer.
But what does it mean for the current court to be illegitimate? Illegitimacy describes one or both of two conditions: First, it refers to someone occupying a position to which he or she possesses no right. Second, illegitimacy pinpoints the exercise of one’s power in ways flagrantly beyond its proper scope, so much so as to involve powers entirely foreign to the office.
Critics of the Supreme Court make both claims. They argue the last three justices to be appointed — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — have no right to their seats. They further declare that recent decisions, especially during the court’s last term, go so far outside the court’s rightful powers as to make the institution itself illegitimate.
They are wrong on both counts. First, they morph the meaning of legitimacy into conformity with their preferences. They say that, in 2016, then-Senate Majority Leader Mitch McConnell never should have refused to confirm President Barack Obama’s nominee to replace Justice Antonin Scalia, a move that led to Gorsuch’s appointment in 2017. They also claim that the unproven accusations made against Kavanaugh by Christine Blasey Ford disqualified him. Finally, they chafe at President Donald Trump’s nomination of Barrett to replace Ruth Bader Ginsburg, coming as it did right before the 2020 presidential election.
None of these accusations has anything to do with real legitimacy. In each case, the appropriate and constitutional process was followed. That is the only standard for a justice’s legitimacy to be on the court. It is the only one because it is the constitutional one, the dictate of the supreme law of the land.