Opinion: The Supreme Court’s Legitimacy is

/ Opinion /

THE SUPREME COURT’S LEGITIMACY IS IN PERIL

by Walter Smith

The Supreme Court recently issued several decisions that are against the interests of District of Columbia residents, as well as the interests of residents across the country. And it appears that the Court may issue more such decisions in its coming term that started in October. Those of us who live in the Nation’s Capital have an additional concern about these decisions: because we lack voting representation in the Congress, we must rely more on the Court to protect our rights.

The Court stands at its lowest approval rating ever and it is likely due largely to three of its recent decisions: the Court’s 5-4 decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v Wade; its 6-3 decision in New York State Rifle and Pistol Assn, Inc. v Bruen, striking down the ability of State and local jurisdictions to set limits on the concealed carrying of guns in public; and its 6-3 decision in West Virginia v. EPA, blocking the efforts of the Environmental Protection Agency to address climate change. For several reasons these decisions are undermining confidence in the Court.

First, these decisions are opposed by a clear majority of the country. Numerous recent polls show that approximately two-thirds of the country disapproves of the Court’s overruling of Roe v Wade, two-thirds support more restrictive gun laws not less, and two-thirds think the Government should be doing more to address climate

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change. Further substantiating that the Court is out of step with the country on these fundamental issues is that the divided Congress has recently passed legislation addressing climate change and earlier passed the first legislation in decades limiting access to guns. It is jarring that two-thirds of the Court’s Justices are out of step with two-thirds of the country.

Second, these Court decisions are plainly harmful to the public interest. The overruling of Roe v Wade will likely lead to women dying; the Court’s authorization of more guns on our streets will likely lead to more gun deaths; and the Court’s blockage of action on climate change may contribute to more death and destruction–as evidenced by the continued daily carnage brought by hurricanes, fires, heat, drought and floods. All three of these harmful decisions are furthermore directly contrary to long held policies of the District government and threaten to undermine those policies.

Third, these decisions appear contrary to the Framers’ intent concerning the role of the Court. Alexander Hamilton wrote of the Judiciary’s role in Federalist No. 78, noting that “liberty can have nothing to fear from the judiciary.” He labelled the judiciary “the least dangerous” branch of government because, unlike the legislative and executive branches, the judiciary “can take no active resolution whatever.”

It would be hard to describe the Court’s recent decisions as other than “active resolution” – resolution that is at odds with the direction being taken by the Congress and the President–and also at odds with the will of a clear majority of the people.

Finally, it also seems likely that the Framers would not have intended the Court to completely ignore the will of the people in reaching its decisions or to ignore the harmful impact of its decisions. And yet, that is what the Court appears to be doing.

In the decision overruling Roe v Wade, Justice Alito’s opinion for five Members of the Court said “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.” And in Justice Thomas’s opinion for the Court in the recent 6-3-gun decision, the majority held that current public safety considerations could not be taken into account either by local legislatures or by the courts; all that mattered was “history and tradition” and through that lens the right to concealed carry was absolute, no matter the consequences. According to Justice Thomas, the Second Amendment right is “elevate[d] above all other interests.”

This suggests that the Court has become uncaring concerning both the will of the people and the

impact on them from the Court’s decisions. This ignores that our government–as the Declaration of Independence says–is premised on “the consent of the governed.” Of course, the Court should not rule based on the latest poll; but neither should it ignore that what it is doing is strongly against the people’s will and will cause great harm to them. As Supreme Court Justice Robert Jackson once said: “The Bill of Rights is not a suicide pact.”

District residents and the millions of other Americans who will be harmed by the Court’s decisions live in the real world and must su er the real-world consequences of those decisions, even if the Justices themselves are not personally a ected. The Justices should be humble enough to acknowledge this. They should also acknowledge that in the end they, like the members of the legislative and executive branches, are public servants. If they continue to issue decisions that are opposed by and harmful to the public, they will lose the public support that is indispensable to their legitimacy and the e cacy of their decisions. As Abraham Lincoln said: “Public sentiment is everything. With public sentiment, nothing can fail. Without it, nothing can succeed.” If the Court refuses to acknowledge this, it puts the Court’s legitimacy in peril.

Walter Smith just stepped down after 20 years as Executive Director of DC Appleseed, a DC-based nonpro t that advocates for the interests of people living and working in the District of Columbia. Before that, he served as the Special Deputy Attorney General for the District, and before that as a partner at the DC law rm Hogan Lovells, where for several years he was the full-time director of the rm’s pro bono practice. The Legal Times named him one of the “90 Greatest Washington Lawyers of the Last 30 Years” and the DC Bar gave him the Brennan Award for service in the public interest, an award named for Supreme Court Justice William Brennan. ◆

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