Supreme Court Legitimacy?Mike Rappaport

On the Volokh Conspiracy, Ilya Somin and Orin Kerr have been debating the relative roles of the judiciary and the legislature in promoting legitimate government. Both Kerry and Somin make some good points. Without agreeing with either of them, I want to comment on one point that Somin makes. 

Somin argues that the Supreme Court has very high approval ratings and that this is some evidence that it behaves legitimately. Perhaps, but there is a basic problem with this argument. It is not known whether these ratings are based on the Court’s decisions or on other seemingly irrelevant factors. The Supreme Court makes decisions in private and the criticism of the Court before the public is generally muted by comparison with criticism of politicians. The personalities of the justices are not generally deemed fair game and there are rarely accusations of corruption. We know from negative campaigning that strong criticism of individuals, especially on television, seriously reduces their popularity. That the Supreme Court is exempt from this kind of criticism and instead is treated with dignity can easily explain why they have such high approval ratings. This can be reinforced by the fact that the Court masquarades with rhetoric about how it follows the law, even when it is obviously not doing so. And for the most part, people let them get away with it.

 To sum up, we simply don’t know if approval of the Supreme Court is due to its decisions or to the fact that it is treated better than the other government actors.