Law and Society (Part 3): Questioning the Legitimacy of the Supreme Court

On June 7th, I attended a roundtable discussion entitled, "Beyond the Realists and the Crits: Is the Supreme Court Even a Court?"  The discussion was in reality a "author meets reader" event.  The author was Eric Segall, and the book was "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges."  The discussion was very interesting, and I came away from it convinced that this book is relevant to my own work on the Supreme Court's Citizens United decision.  For example, Prof. Segall notes that "judges have an important obligation to be candid about the actual reasons for their decisions."  Meanwhile, my primary criticism of the Citizens United decision has been that the majority ignores, and the dissent expressly disavows, any role for corporate theory in their fight over the majority's ultimate conclusion that "the Government cannot restrict political speech based on the speaker's corporate identity," 130 S.Ct. 876, 902, when in fact it is seemingly impossible to reach that conclusion without adopting particular views about what corporations are.  (Go here for my latest draft on this topic.)  Furthermore, Prof. Segall notes that when judicial conclusions about the Constitution change seemingly solely because the composition of the Court changed, the very legitimacy of the Court is implicated:

The problem with this back and forth, in addition to the instability it causes, is that the Supreme Court’s legitimacy stems in part from its intended role as a traditional court whose judges apply the “law.”  But … “if changing judges changes law,” then it is uncertain whether the law controls judges of the other way around.

Of course, one can argue that the only thing that really changed between Austin/McConnell and Citizens United was the composition of the Court, and I have further argued that the failure to deal with the corporate theory issue likewise implicates the Court's legitimacy.  Relatedly, a recent poll found that the public approval rating of the Court has hit what I believe is an all-time low of 44% recently, with further grumbling expected in connection with the pending health care ruling.

Segall's book supports its dramatic claim with detailed analysis of numerous well-known Supreme Court cases and, while I'm sure many will find much to criticize, I can easily recommend it.