It's time to accept that the US supreme court is illegitimate and must be replaced
The justices of the US supreme court – even its conservatives – have traditionally valued their institution’s own standing. John Roberts, the current US chief justice, has always been praised – even by liberals – as a staunch advocate of the court’s image as a neutral arbiter. For decades, Americans believed the court soared above the fray of partisan contestation.No more. In Donald Trump’s second term, the supreme court’s conservative supermajority has seized the opportunity to empower the nation’s chief executive. In response, public approval of the court has collapsed. The question is what it means for liberals to catch up to this new reality of a court that willingly tanks its own legitimacy. Eager to realize cherished goals of assigning power to the president and arrogating as much for itself, the conservative justices seemingly no longer care what the public or the legal community think of the court’s actions. Too often, though, liberals are responding with nostalgia for a court that cares about its high standing. There is a much better option: to grasp the opportunity to set right the supreme court’s role in US democracy.
Attention to the body’s legitimacy surged in the decades after the extraordinary discussion on the topic in Planned Parenthood of Southeastern Pennsylvania v Casey – the 1992 case that memorably preserved the abortion rights minted in Roe v Wade despite recent conservative additions to the court. “The Court’s power lies in its legitimacy,” former justices Anthony Kennedy, Sandra Day O’Connor and David Souter explained in their joint opinion, “a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”. The fact of popular acceptance of the institution’s role was itself a constitutional and legal concern.
Compared with the prior quarter-century, when they angled for just one justice (often Kennedy) to swing to their side, it was already clear as Trump’s first term ended how much was going to change with Amy Coney Barrett’s conservative substitution for Ruth Bader Ginsburg. Yet liberal justices generally proceeded as if their conservative peers would continue to take their own institution’s legitimacy seriously. They focused on warning conservatives against further eroding it. The dissent in Dobbs v Jackson Women’s Health Organization, which removed the federal right to abortion, is a classic example. The liberal justices lionized Kennedy and other conservatives for refusing to overturn Roe v Wade out of the need they cited in Casey to maintain the supreme court’s image.
That was then. In Trump’s second term, the court has ceded to him near total control over federal spending, even as the president is now openly threatening to withhold funds from “blue” states and projects not aligned with administrative “priorities”. Authorized by the court to engage in racial profiling, masked federal agents continue to descend upon “Democrat-run” cities, subjecting Latinos and now Somalis to ongoing abuse.
more... https://www.theguardian.com/commentisfree/2025/dec/19/us-supreme-court-legitimacy
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