Institutional Reputations and Democratic Theory
By In the discussion thread for Scott’s post on elitist approaches to Supreme Court qualifications, Denverite explains his position a bit more. Why favor elitism? His answer has a kind of soft Straussian/Platonic noble lie flavor. It’s important that the public hold the court in high regard, because
Because it frequently will have to issue countermajoritarian pronouncements, and the more it’s seen as a politically unaccountable political body, the greater the risk that those pronouncements will be disregarded.
In response to the obvious critique here, he accounts for his attraction to this view thusly:
With respect to the political point, I see where you’re coming from, but I guess I just disagree. LGBT couples are getting married in places like Alabama and Texas, despite overwhelming local opposition, because of the reputation of the Court as an impartial institution. My guess is that the second it is seen as a sort of Super-Senate with the absolute power of veto, it will lose the institutional authority. I think that would be a bad thing.
Let’s break this down into a series of concrete premises:
Premise #1: Elitist accounts of what it means to be qualified for the Supreme Court enhance the court’s perceived legitimacy.
Premise #2: High levels of default legitimacy for the Supreme Court is desirable.
Premise #3: (#2) is accurate because the Supreme Court sometimes makes salutory decisions, and when it does it’s a good thing that they’re understood as procedurally legitimate amongst the broader public.
When spelled out thusly, a flaw becomes fairly obvious. The same could be said of all manner of institutions, but rarely is. The low opinion the public holds of the current Republican congress doesn’t worry my inner Democratic theorist, because, well, given the current occupants they richly deserve it. Similarly such worries don’t seem to be commonplace about, say, executive orders, or bureaucratic agency autonomy, or the executive branch generally.
And, donning my democratic theorist hat, this is as it should be. Democratic political systems are made up of institutional choices and arrangements that have strengths and weaknesses, and value that depends a great deal on who is occupying them at the moment. Legitimacy is an open, ongoing question. (Perhaps the Senate might have been a legitimate institutional choice in 1789; that tells us little about its value and democratic valence today.)
On the narrow issue of would it be better if the perception of court legitimacy led people to respect same sex marriages who wouldn’t otherwise be inclined to do so, that is indeed a good thing. On the other hand: if an overriding belief in the legitimacy of the supreme court led us to believe there’s nothing whatosever wrong with racially motivated voter suppression, that would very much not be a good thing. If a compelling argument is to be made for the democratic value of a high degree of legitimacy granted to the court, regardless of the actual content of their decisions, it seems pretty clear that it can’t be made by cherry-picking their best decisions.
As an aside, Denverite is in prestigious legal-elite company in making this argument; it’s advanced by Cass Sunstein as part of his defense of ‘minimalism’ as a guiding judicial philosophy for the supreme court–a court that open adopts minimalism will, he asserts, be seen as more legitimate, which is obviously a good thing. Scott should probably be writing this post, because in chapter four of our book manuscript he devotes several scathing paragraphs critiquing Sunstein’s undefended assumption.
[SL]: For those who can’t wait for our book, a version of my BLISTERING (not really) critique of Sunstein can be found here.