//  6/19/19  //  Commentary

We have a new op-ed in the Washington Post responding to arguments that the Supreme Court shouldn't pay any mind to questions of judicial legitimacy.  Here's how it begins:

It is illegitimate to consider legitimacy. So say many conservatives who seem terrified that Chief Justice John G. Roberts Jr. might care about public perception of the U.S. Supreme Court. Haunted by his vote upholding the Affordable Care Act — a vote they view as unprincipled — they insist that only a weak-willed, weak-kneed judge would ever deviate from right-wing orthodoxy to preserve the court’s legitimacy. They urge the chief justice to stick with the conservative party line and rise above the supposedly cynical warnings that this term’s biggest cases could harm the judiciary.

These arguments are profoundly hypocritical. Conservative lawyers and judges have long raised concerns about judicial legitimacy to protest progressive rulings on abortion, the death penalty, same-sex marriage, partisan gerrymandering and many other issues. In Obergefell v. Hodges, for instance, then-Justice Antonin Scalia warned that the court’s decision recognizing a constitutional right to marriage equality “has to diminish this Court’s reputation for clear thinking and sober analysis.”

But that was then, and this is now. Calls to be mindful of judicial legitimacy are passe; conservatives demand activism of the court they believe they have captured. No matter that many of those same conservatives bulldozed every relevant norm on the way (especially when they defended the Senate’s refusal to hold a hearing on Merrick Garland’s nomination). Or that they weakened the court’s credibility in doing so. The only thing that matters is that they “won” — and that nothing stands in the way of conservative outcomes.

To be sure, concerns about legitimacy can be overstated. Most cases, even important ones, do not threaten the court’s viability as a forum for resolving pressing disputes.

Yet some issues really do strike at the court’s legitimacy. The challenge to the addition of a citizenship question on the 2020 Census is one of them.

Keep reading here.


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