On the Authority of the Supreme Court

As a governmental institution, the Supreme Court claims and attempts to exercise authority not just over other courts, branches of federal government, and the states, but over the general public as well. Without any such authority, the Court as an institution would be unrecognizable.

The Supreme Court’s authority comprises a positive, or broadly sociological, element as well as a normative element that focuses on a possible moral obligation to defer to Supreme Court decisions. While these positive and normative elements are not entirely separable, some useful distinctions can be drawn. Thus, at any given point, the Court might effectively exercise what is popularly thought to be morally binding, legitimate authority, even if no genuinely sufficient argument for such authority can be made. And even if the underlying genuine normative authority of the Court remains constant, at whatever level, public respect for and deference to the Court as an institution may trend up or down.

Of late, the Court itself has both defended its own moral authority and also presented grounds for questioning that moral authority. Neither these defenses nor these critical assessments are confined to any Supreme Court political grouping. This debate within the Court itself as to its own morally binding authority very roughly corresponds to parallel debates among the public as well as among jurisprudentially oriented writers.

If there is any simply stated bottom line, it is that, as discussed below, the Court may well not hold much genuinely binding moral authority, and the general public may itself be ambivalent on that question. On the other hand, the Court may not actually need much genuine, or much publicly perceived, moral authority in order to perform most of its work.

At its simplest, “[a]uthority on the part of those who give orders and make regulations is: a right to be obeyed.” Authority, as discussed herein, relates in some fashion to the idea of legitimacy. We can begin to clarify the idea of authority by noticing that there is a difference between merely conforming to an authority’s dictate and actually complying with that dictate.

Thus, for example, one might wear a mask in a pandemic not because a court so decrees, but because of one’s preexisting reasoned judgment in favor of wearing a mask. A court’s authority is most clearly on display when persons wear a mask largely because a court has so decreed, even if the public’s own independent reasoning, on the merits, does not favor wearing a mask. Authority is, thus, most conspicuous when we obey, despite our own continuing best judgment on the underlying merits. Otherwise put, authorities, including institutional legal authorities such as the Supreme Court, have, within limits, “a right to err, or to make mistakes” without thereby flinging the door open to mass disobedience.

The institutional authority of the Supreme Court fits best within Max Weber’s ideal type of rational-legal authority, as distinct from authority that is based primarily on tradition and history, or on some form of charismatic authority. To some degree, though, the Supreme Court may indeed draw as well on history and tradition, as in its costumes, ceremonies, trappings, formalities, and rituals in maintaining its authority.

Useful for our purposes is Professor Richard Fallon’s distinctions among legal legitimacy, sociological legitimacy, and moral legitimacy, and their possible tradeoffs. The Supreme Court’s authority depends, to one degree or another, on what we might call its pedigree, lineage, or institutional derivation. There may well be cases in which members of the Court are inclined, perhaps subconsciously, to sacrifice a bit of their legal or methodological legitimacy for the sake of greater sociological legitimacy, as measured by public compliance, Court popularity, or the Court’s institutional prestige. Finally, the Court may exercise sociological legitimacy in obtaining widespread popular obedience and may be widely thought to be institutionally authoritative, even when the jurisprudential arguments for a genuine moral obligation of obedience to the Court’s dictates are weak.