Constitutional Legitimacy and the Supreme Court

Abstract

De Tocqueville’s observation more than 150 years ago that ‘scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’ is an exaggeration, but an understandable one. Because Americans litigate with enthusiasm, most divisive issues do receive an airing in the courts. And, precisely because they are divisive, any resolution is likely to call forth both praise and criticism. For the critics, whether conservative or liberal, the fact that an unelected and unaccountable body — and very possibly only five of that body’s nine members — has negated a law passed by a duly elected legislature or a regulation promulgated by a duly appointed executive officer is particularly galling. The curiosity in a culture so aggressively democratic in its rhetoric (although perhaps not in its actions) is that these moments of public passion do not occur continuously, but only irregularly (Nagel, 1965; Pritchett, 1961; Murphy, 1962; Schmidhauser and Berg, 1972). The Supreme Court’s legitimacy, therefore, must be considerable.