The Supreme Court resembles the Federal Reserve in some ways. The decision-makers are unelected technocrats who use arcane methods and vocabularies (“stare decisis” for the court, “zero lower bound” for the Fed). The unfamiliarity of what they do makes it all the more important for the public to trust that what goes on behind the curtain keeps getting better. But in the latest Gallup poll data, only 25 percent of Americans polled in the weeks before Dobbs said they had a lot or a lot of confidence in the Supreme Court. That was a new low in nearly 50 years of polls.
There is no one in court today like Judge Anthony Kennedy, who, despite being a Republican appointee, was independent and often unpredictable in his case law, Epps said. Kennedy retired in 2018. “The screening is much stricter now” than when Kennedy entered the court in 1988, so a freethinker like him would never get on the bench, Epps said.
Of the Republican-appointed Supreme Court justices, only Chief Justice John Roberts appears to be deeply concerned about maintaining the impression that the court is apolitical. In the Dobbs case, he voted overwhelmingly in favor of enforcing a law in Mississippi that restricts abortion, but said he would have taken “a more measured course” and not have rejected Roe outright.
The Dobbs decision came a day after the Supreme Court lowered New York’s limit on carrying guns outdoors. In Dobbs, the court upheld the right of states to restrict the behavior of their citizens, while in the New York case it did the opposite. That may seem inconsistent to abortion rights advocates, but it’s exactly what the average Republican voter wants, said Maya Sen, a professor at Harvard Kennedy School.
“We assume that political actors want a judiciary that serves their interests,” said Sen, who co-authored a 2020 book with Adam Bonica, “The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives shape the American judiciary.” “For many Republicans, this is a day of celebration, of victory,” she said.
It was James Gibson, a colleague of Epps at Washington University who is an expert on Supreme Court legitimacy, who coined the phrase “legitimacy is for losers.” In a chapter in a 2015 book, he wrote, “Institutions don’t need legitimacy if they make people happy with their policies. Legitimacy becomes crucial in the context of discontent.”