Volume and Issue: Vol. 96, Postscript

As a governmental institution, the Supreme Court claims and attempts to exercise authority not just over other courts,¹awrence A. Jegen III Professor of Law, Indiana University Robert H. McKinney School of Law. My thanks go to Mary Theresa Mullin Wright. branches of federal government,²See, e.g., Marbury v. Madison, 5 U.S. 137, 177–78 (1803). and the states,³See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958). but over the general public as well.⁴As in, merely for example, upholding or striking down vaccine mandates, as seen in the case of National Federation of Independent Business v. OSHA, 142 S. Ct. 661 (2022). 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.⁵See, e.g., Jeffrey M. Jones, Confidence in U.S. Supreme Court Sinks to Historic Low, Gallup (June 23, 2022), http://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx [http://perma.cc/5JFG-F5HF].

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.⁶See infra Parts II, III.

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.⁷For a sampling of recent discussions of judicial supremacy and judicial review in the American context, see Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, Atlantic (June 8, 2022), http://www.theatlantic.com/ideas/archive/2022/06/supreme-court-power-overrule-congress/661212 [http://perma.cc/RT8M-Q2PE]; Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 Calif. L. Rev. 1013, 1019 (2004) (“Empowering state and local governments to disregard Supreme Court decisions is a truly frightening notion, as disobedience to unpopular rulings would be inevitable.”); Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693, 1704 (2008) (focusing on the problem of underenforcement of rights where it is assumed that no contrary right claims are also at stake); Larry D. Kramer, Judicial Supremacy and the End of Judicial Restraint, 100 Calif. L. Rev. 621, 634 (2012) (“[P]eople’s reactions to judicial review are not solely a product of whether they agree or disagree with the Court’s results. They are also affected by people’s sense of how much authority the Court is supposed to have.”); David Landau & Rosalind Dixon, Abusive Judicial Review: Courts Against Democracy, 53 U.C. Davis L. Rev. 1313, 1313 (2020) (“[I]t is not uncommon for judges to issue decisions that intentionally attack the core of electoral democracy.”); Mark Tushnet, Against Judicial Review 15 (Harv. L. Sch. Pub. L. & Legal Theory Working Paper, Paper No. 09-20, 2009), http://ssrn.com/abstract=1368857 [http://perma.cc/AJ2V-ZLUE] (“Perhaps popular ‘acceptance’ of judicial review is more a sign of resignation to the fact that democratic majorities have been unable to eliminate a practice favored by political elites than of positive support for the practice.”); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1352 (2006) (opposing judicial review generally, while granting that “[i]t may still be the case that judicial review is necessary as a protective measure against legislative pathologies relating to sex, race, or religion in particular countries”); W.J. Waluchow, Judicial Review, 2 Phil. Compass 258 (2007); Keith E. Whittington, Give “The People” What They Want?, 81 Chi.-Kent L. Rev. 911, 922 (2006) (“Judicial supremacy . . . has more often than not been embraced by the people themselves.”). The classic judicial citation is to Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”), as quoted in the desegregation case of Cooper v. Aaron, 358 U.S. 1, 18 (1958).

At its simplest, “[a]uthority on the part of those who give orders and make regulations is: a right to be obeyed.”⁸G.E.M. Anscombe, On the Source of the Authority of the State, in Authority 142, 144 (Joseph Raz ed., 1990). But cf. Hannah Arendt, What Was Authority?, in Authority 81, 82 (Carl J. Friedrich ed., 1958) (“[W]e are no longer in a position to know what authority really is.”). Authority, as discussed herein, relates in some fashion to the idea of legitimacy.⁹See Seymour Martin Lipset, Political Man: The Social Bases of Politics 77 (1960) (“Legitimacy involves the capacity of the system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society.”). On one view, legitimacy is at least one, if not the sole, basis on which governmental authority rests. See Charles Larmore, What Is Political Philosophy? 4, 41–43, 69 (2020); see also Daniel Bell, The Cultural Contradictions of Capitalism 180 (1976) (“The key question for any political system . . . is the legitimacy of the system.”). 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.¹⁰See Scott Hershovitz, The Authority of Law, in The Routledge Companion to Philosophy of Law 65, 69 (Andre Marmor ed., 2015) (citing Joseph Raz, Authority and Justification, in Authority 115, 121 (Joseph Raz ed. 1990)).

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.¹¹Or else, at least in part, because epistemic authorities such as epidemiologists, but not legal authorities, have so recommended. 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.¹²See, e.g., Larry Kramer, Response, 81 Chi.-Kent L. Rev. 1173, 1181 (2006). Otherwise put, authorities, including institutional legal authorities such as the Supreme Court, have, within limits, “a right to err, or to make mistakes”¹³Daniel Viehoff, Legitimacy as a Right to Err, in Political Legitimacy 174, 174 (Jack Knight & Melissa Schwartzberg eds., 2019). 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,¹⁴See Max Weber, The Theory of Social and Economic Organization 328 (A.M. Henderson & Talcott Parsons trans., 1964) (1947). as distinct from authority that is based primarily on tradition and history,¹⁵See id. or on some form of charismatic authority.¹⁶See id. 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.¹⁷For a sense of the broad underlying logic, see Edward Shils & Michael Young, The Meaning of the Coronation, 1 Socio. Rev. 63 (1953); see also Walter Bagehot, The English Constitution 7 (Paul Smith ed., Cambridge Univ. Press 2001) (1867) (on the role of “dignified” elements of the English Constitution).

Useful for our purposes is Professor Richard Fallon’s distinctions among legal legitimacy, sociological legitimacy, and moral legitimacy,¹⁸See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1789, 1789 (2005). 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.¹⁹For an interesting counterexample, see West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (showing wartime Pledge of Allegiance case overruling the recent Minersville School District v. Gobitis, 310 U.S. 586 (1940)). 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.²⁰See infra notes 67–125 and accompanying text.