2.9—Legitimacy of the Judicial Branch

Were the antifederalists right to be concerned about the power of the Supreme Court? Was Hamilton wrong in believing the court is the least dangerous branch and requires the least amount of constitutional restraints?
This is an incredibly relevant section that helps us understand current debates around the role and legitimacy of the Supreme Court.

What you need to learn

How can the Court’s power of judicial review, lifetime appointments, and the ideological makeup of the Court’s justices lead to public debates about the legitimacy of the Supreme Court?



binding precedent

persuasive precedent

stare decisis

Factors Influencing Legitimacy

judicial review

political ideology

lifetype tenure

Illustrative Examples

Burger Court & United States v. Nixon (1974)

Roberts Court: marriage equality, reproductive rights, affirmative action

Legitimacy of the Judicial Branch

Essential Question: How has the Supreme Court’s use of judicial
review in conjunction with life tenure led to debates about the legitimacy
of the court?

Supreme Court Precedents and Policy

Supreme Court and lower court rulings can have considerable consequences for Americans. When those consequences are undesired, critics of courts express reasons to question its legitimacy. Life tenure, broad federal jurisdiction, a judge’s ideology, and unfavorable decisions lead some to distrust the power of the courts.

Common Law and Precedent

Courts follow a judicial tradition begun centuries ago in England. Common law refers to the body of court decisions that make up part of the law. Court rulings often establish a precedent—a ruling that firmly establishes a legal principle. These precedents are generally followed later as subordinate courts must and other courts will consider following. The concept of stare decisis, or “let the decision stand,” governs common law.

Lower courts must follow higher court rulings. Following precedent establishes continuity and consistency in law. Therefore, when a U.S. district court receives a case that parallels an already decided case from the circuit level, the district court is obliged to rule the same way, a practice called binding precedent. Even an independent-minded judge who disagrees with the higher court’s precedent knows an appeal of a uniquely different decision, based in similar circumstances, will likely be overruled by the court above. That’s why all courts in the land are bound by U.S. Supreme Court decisions.

Judges also rely on persuasive precedent. That is, they can consider past decisions made in other district courts or faraway circuit courts as a guiding basis for a decision. Precedents can, of course, be overturned. No two cases are absolutely identical, which is precisely why judges make decisions on a case-by-case basis. Also, attitudes and interpretations differ and evolve over time in different courts.

Supreme Court Precedents Establish Policy

The Supreme Court’s authority of binding precedent combined with its power of judicial review has given it a strong hand in establishing national policy. Early on, it addressed national supremacy and states’ rights. Later, it defined the relationship between government and industry. Most recently, the Court’s historic impact has shaped individual rights and liberties.

The Supreme Court is the only federal court named in Article III of the Constitution, yet it did not operate in its own building—shown here in a drawing before it was built—until 1935.

Defining Federalism

The Supreme Court in its fledgling years was a nondescript institution held in low esteem. President Washington appointed Federalist John Jay as the first chief justice. At first, the Court operated in a second-floor room in a New York building and convened for only a two-hour session. Several early justices didn’t stay on the Court long. Jay resigned in 1795 after only six years.

The Court’s reputation and role would soon change. Once President John Adams appointed Federalist John Marshall as chief justice, the Court began to assert itself under a strong, influential leader. Marshall, a Federalist and Father of the Supreme Court, remained on the Court from 1801 until his death in 1835. He helped created a united court that spoke with one voice. Marshall insisted that this brotherhood of justices agree and unite in their rulings to shape national law. In virtually every important case during his time, that one voice was Judge Marshall’s. “He left the Court” Chief Justice William Rehnquist wrote years later, “a genuinely coequal branch of a tripartite national government… the final arbiter of the meaning of the United States Constitution.” He fortified the Union and federal powers with rulings that strengthened national supremacy and Congress’s commerce power.

During Marshall’s tenure, the McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) rulings empowered Congress to create a bank and strengthened its power to regulate interstate commerce. With the Marbury v. Madison (1803) decision, the Court struck down part of the Judiciary Act and thereby exercised judicial review.

Continuity and Change Over Time

The Supreme Court is known more for continuity than for change. Membership is small, and justices serve long tenures. The Court’s customs are established through consensus and remain constant over generations. The contemporary group operates in many ways as earlier Supreme Courts did.

The combination of the lifetime tenure of justices and the Court’s exercise of judicial review has given rise to debates over the legitimacy of the Supreme Court. Some people believe, as Anti-Federalist Brutus expressed more than 200 years ago, that with no power to hold them accountable, the justices on the Supreme Court are too separated from the real sources of power-the people and the legislature–to be legitimate arbiters of democratic law. Brutus believed the Supreme Court justices would “be placed in a situation altogether unprecedented in a free country-totally independent. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

Furthermore, the composition of the Court changes as seats become vacant, and the presidential appointments to fill them can lead to shifts in the ideology of the Court. These changes can result in the overturning of some precedents, calling into question the reliability and therefore legitimacy of Supreme Court decisions. Controversial and unpopular decisions can face a number of challenges.

Overturning Precedent

Precedent plays an important role in judicial decision-making. Rulings by higher courts bind lower courts to the same ruling. However, in 1932 Justice Brandeis wrote in a dissenting opinion in Burnet v. Coronado Oil & Gas Co., “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable law be settled than it be settled right. This was especially true about rulings related to legislation, he argued, because errors in the Court’s decision could be corrected by Congress. However, on matters related to the application of the Constitution, which the legislature has no power to change, Brandeis noted that the Court has often reconsidered and overturned its own previous ruling if an earlier one was made in error.

Consider the precedents set in two important cases: Plessy v. Ferguson (1896) that enabled states to provide separate schools for students based on race, and the later Brown v. Board of Education (1954) ruling that reversed the same principle. (See Topic 3.11 for more on both cases.) Of course, a half century had passed and race and education were viewed differently at those two points.

More telling examples of the Court’s willingness to overturn precedent are seen in cases dealing with suffrage. The Court had ruled in 1935 in Grovey v. Townsend that the Democratic Party of Texas, as a private, voluntary organization, could determine its own membership rules. Even if those rules banned African Americans from voting in the primary, as the Constitution didn’t apply to this non-government institution. In the 1944 case of Smith v. Allwright, Lonnie E. Smith brought suit with a similar argument about his Fifteenth Amendment voting rights. The Court ruled in his favor and furthered the discussion of stare decisis versus overturning a precedent. “In reaching this conclusion, we are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. . . . Grovey v. Townsend is overruled.”

Why the dramatic shift in only nine years? By 1944, different justices occupied the seats on the Court, and, amid World War II, views changed on democracy, fairness, and equality.

The Supreme Court Today

When President George W. Bush replaced Chief Justice Rehnquist after his death with John Roberts (2005), the Court’s membership had not changed for about 12 years. President Barack Obama appointed two women, Circuit Justice Sonia Sotomayor (2009), and U.S. Solicitor General Elena Kagan (2010). President Trump nominated Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020) as the Court’s newest members.

The Roberts Court, April 23, 2021 Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photograph by Fred Schilling, Collection of the Supreme Court of the United States

The Rehnquist Court and the current Roberts Court have been difficult to predict. The conservative and liberal wings had been balanced by the swing votes of Justices O’Connor and Kennedy. Swing votes are those often tie-breaking votes cast by justices whose opinions cannot always be easily predicted. For the past decade or so, most experts have been quick to characterize the Court as leaning conservative. However, the Court has limited states’ use of the death penalty and upheld government’s eminent domain authority for economic development. With Justice Kavanaugh as Kennedy’s replacement, the direction of the Court is uncertain.

Chief Justice John Roberts has guided the Court with judicial minimalism. “Judges and justices are servants of the law, not the other way around. Judges are like umpires,” he said during his confirmation hearing. “Umpires don’t make rules; they apply them … nobody ever went to a ball game to see the umpire. Robert’s operation takes fewer cases, while the conversations and conferences go longer. He has achieved more unanimity in decisions than some previous chief justices and has written more narrow opinions to address the questions before the Court. If you are reading this, the first person to text me and say ‘I found the is the court legit easter-egg’ gets a small prize.