The Supreme Court’s Constitutional Conundrum: A Crisis of Legitimacy

The conversation between Jamelle Bouie, Dahlia Lithwick, and Mark Joseph Stern on the Amicus podcast highlights a profound issue at the heart of American democracy. As the Supreme Court becomes increasingly insulated from public scrutiny, it is time to confront the issue of what it means for unelected judges to wield such enormous power over the Constitution.

Bouie’s assertion that the current state of affairs is “entirely historically contingent” suggests that the Supreme Court’s growing influence and detachment from public opinion are relatively recent developments. To understand why Americans have come to accept this arrangement, we need to look back at the Warren court era. During this time, liberal elites used judicial power to advance their policy goals without facing opposition from Congress or the White House.

This strategy had an unintended consequence: it created a mythology of the Supreme Court as a neutral, technocratic body, untainted by politics. The rise of professionalization within the judiciary has contributed to this perception. Justices now come from a narrow pool of elite law schools and have extensive experience on lower federal courts. Their careers are deeply entrenched in the legal establishment, creating an impression that they are detached from the public sphere.

The professionalization of the judiciary has been accompanied by a shift towards longer, more complex opinions. These lengthy decisions serve to obscure the court’s true intentions and create an aura of mystery around its deliberations. In reality, this is simply a way for the court to assert its authority and distance itself from public scrutiny.

Recent examples, such as the birthright citizenship case, demonstrate how this plays out in practice. Clarence Thomas’ dissent, replete with arcane references to 19th-century figures, is a prime example of how a judge can use complexity to mask their own biases and make their opinions seem more persuasive.

The question remains: what does it mean for the Constitution when unelected judges wield such enormous power over its interpretation? Bouie’s answer is clear: “the people themselves” must be seen as the true owners of the document. However, this raises a fundamental issue: how do we, as a society, reclaim the Constitution from the Supreme Court and restore it to its proper place at the heart of American democracy?

To address this challenge, we need to look beyond the court’s recent decisions and examine the broader historical context. In the 19th century, the judiciary was seen as an active participant in the political process, responding to changing circumstances with shorter, more decisive opinions. We can learn from this approach by recognizing that judicial power is not absolute, but rather a tool for serving the public interest.

Ultimately, the crisis of legitimacy facing the Supreme Court is a symptom of a deeper issue: our growing distrust of institutions and our increasing reliance on unelected authorities to shape our laws and policies. To resolve this crisis, we must reinvigorate American democracy by giving citizens a greater role in shaping their own Constitution.

The stakes are high, but the rewards are worth it. By reclaiming the Constitution from the Supreme Court and restoring its original intent as a document of the people, for the people, and by the people, we can create a more vibrant, participatory democracy that truly reflects our values and aspirations.

As we move forward, it is essential to watch closely how the Supreme Court responds to this challenge. Will it continue down the path of professionalization and detachment from public opinion, or will it begin to recognize its role as a servant of the people rather than an arbiter of their fate? The answer to these questions will determine the future of American democracy itself.