Jeff Jacoby / June 30, 2022

Overturning Roe Does Not Make the Supreme Court ‘Illegitimate’

Last week’s decision is hardly the first time the justices have infuriated millions of Americans.

For 58 years, the Supreme Court’s ruling in Plessy v. Ferguson upholding the legality of racial segregation was the law of the land. Based on that 1896 decision, the racial caste system that arose in the South after Reconstruction was cemented into place. For the next three generations, young Americans grew up in a nation where Jim Crow was taken for granted. Many Americans opposed racial apartheid as immoral, of course, but the segregationists had the Constitution on their side — the Supreme Court had said so.

Then, in 1954, Plessy was effectively overruled by the court’s decision in Brown v. Board of Education. The reaction in much of America was fury. Southern politicians vowed to fight the ruling. Senator Harry Byrd of Virginia called for “massive resistance” to racial integration in schools. James Eastland of Mississippi condemned Brown as a violation of judicial norms, calling it “a legislative decision by a political body.” Billboards proclaimed “Impeach Earl Warren,” as livid critics of the decision focused their anger on the liberal chief justice.

The Supreme Court’s decision last week to overturn Roe v. Wade is hardly the first time the justices have infuriated millions of Americans. The blowback from segregation’s defenders in the wake of Brown was intense. So is the current progressive rage at the court’s decision in Dobbs v. Jackson Women’s Health Organization.

In their wrath, prominent Democratic voices are attacking not just the decision or the justices but the “legitimacy” of the court itself.

“This court has lost legitimacy,” declared Senator Elizabeth Warren on Sunday. “They have burned whatever legitimacy they may still have had after their gun decision, after their voting decision, after their union decision. They just took the last of it and set a torch to it with the Roe v. Wade opinion.” The only way to “get some confidence back,” said Warren, is for Democrats to pack the court with more justices.

Warren isn’t alone. Similar language has been deployed by Senator Ed Markey (“the illegitimate, far-right majority on the Supreme Court”), Representative Pramila Jayapal, (“expand SCOTUS to restore legitimacy”), Representative Alexandria Ocasio-Cortez (“this is a crisis of legitimacy”), and the chairman of the Democratic National Committee (“this illegitimate Supreme Court”). Multiple media liberals have amplified the claim. “For too long, progressives have accepted without question the legitimacy of the courts,” thunders the leftist journal Jacobin. “That needs to change now.”

But the Supreme Court does not become “illegitimate” because it hands down rulings people disapprove of. Like the right-wingers who howled for “massive resistance” to the Warren Court’s rulings, the left-wingers clamoring today for court-packing or even nullification are demonstrating only that they reject basic constitutional norms. In that sense, they are no different from Trumpian hardliners who continue to insist that President Biden was not legitimately elected.

Eight years after Brown, the Warren Court issued an even more unpopular decision. In Engel v. Vitale, it declared government-directed prayer in public school unconstitutional. Public reaction was ferocious. Newsweek reported on the “swell of indignation, astonishment, and bewilderment that swept across the nation.” Gallup found that 79 percent of Americans disapproved of the ruling. In one scholar’s words, “Engel provoked more outrage, more congressional attempts to overturn it, and more attacks on the justices than perhaps any other decision in Supreme Court history.”

Did the sweeping hostility to Engel prove that the Supreme Court had lost its legitimacy? No more than Brown had in 1954, or than Plessy had in 1896 — or than Roe would in 1973.

A hated Supreme Court decision does not make the court illegitimate. The proof is that its decisions — right or wrong, popular or unpopular — are deferred to. Partisans are so passionate in their support for or opposition to Supreme Court nominations and rulings precisely because the court’s authority remains intact. Plessy and Brown could not both have been correct. But each, in turn, was acknowledged as binding. The same was true of Roe. And will be of Dobbs.

Arguably, the Supreme Court’s worst ruling ever came in 1857, when it held in Dred Scott v. Sandford that persons of African ancestry had “no rights which the white man was bound to respect.” Millions of Americans were horrified by the decision, among them Abraham Lincoln, who condemned it unreservedly. But he did not deny the court’s legitimacy.

The decision was appalling, Lincoln said, and everything possible must be tried to get it overruled. But he also stressed his “respect for the judicial department of government.” Eventually Dred Scott was upended by the Thirteenth Amendment. The Supreme Court — and its legitimacy — remained intact. They remain intact today, as Dobbs, however controversial, is acknowledged the law of the land.

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