Disparaging the Supreme Court, Part II: Questioning Institutional Legitimacy

This updated and expanded piece welcomes the US Supreme Court to an unrelenting new world of disparagement, arguing that the Court is now subject to the widest and most sophisticated criticism it has ever experienced. This has led to many questions regarding the institution's legitimacy, and it now appears that a deeper conversation about the proper role of the Court, especially in regard to constitutional review, has only just begun. The increase in disparagement comes from both external (e.g., the press) and internal (e.g., dissent) sources. Externally, journalists, politicians, scholars, and the wider general public are now thinking and speaking about the institution in a much different light than previously. Internally, the piece argues that the justices’ disparagement of each other has contributed to this wider criticism, and that the recent health care and same-sex marriage decisions significantly exposed this problem. If such disparagement continues, an increase in popular constitutionalism or departmentalism may be inevitable. Additionally, lower federal courts and state courts may start carving out their own constitutional paths that run contrary to Supreme Court precedent. The piece also compares SCOTUS with their transatlantic neighbour, the UK Supreme Court, to demonstrate that the US Court is out of touch as regards its communications with the public and the press, the televising court proceedings, and even in their wardrobes. Ultimately, it concludes that the Court will be a major issue in the upcoming presidential election, and that the increased disparagement and questioning of institutional legitimacy is unlikely to abate anytime soon.