A Crisis of Consensus: The Supreme Court's Legitimacy and Recent Challenges Thereto

Abby Ulman*

The legitimacy of the Supreme Court is crucial for maintaining public trust and upholding the rule of law. The institution occupies a central role in interpreting the Constitution and shaping legal precedents. However, following a series of high-profile rulings, public approval of the Supreme Court has recently declined to its lowest point, with more than half of Americans expressing an unfavorable view of the Court.¹ What explains the dramatic decline in the Court’s popularity? Some have argued it is the Court’s rapid ideological evolution² or the countermajoritarian process by which it was constituted.³ Nonetheless, criticism of the Court’s rulings has veered into attacks on its legitimacy as an institution. Commentators, including prominent constitutional scholars, a former Attorney General, current members of Congress, and even some Justices have recently questioned the legitimacy of the Supreme Court.⁴ Indeed, some have gone as far to suggest that the Court’s legitimacy problem warrants extreme measures, such as removing life tenure or restricting federal jurisdiction, as well as impeaching Justices, disobeying decisions, and most commonly, “packing” the Court.⁵

Diminution of the Court’s reputation could impact its ability to safeguard basic democratic norms, which necessitates a solution to its “legitimacy crisis.”⁶ Legitimacy is an illusive concept, “[b]ut in legal discourse, we have an intuitive sense that illegitimate” takes on a pejorative nature: “The term signifies something absolutely without foundation and perhaps ultra vires.”⁷ Thus, when a judicial institution lacks legitimacy, “it may no longer be worthy of respect or obedience.”⁸ With no enforcement power of its own, the Supreme Court must take measures to maintain its legitimacy. The perceived legitimacy of the Court is not solely determined by its formal authority; consensus significantly influences public perceptions. This Note suggests that the institution itself may be able to ward off these Court-curbing efforts and the attacks on its legitimacy by promoting consensus. Borrowing from the fields of psychology, economics, history, and law, this Note explores the intricate relationship between consensus⁹—both within and without the Supreme Court—and the institution’s perceived legitimacy.

Part I retells the history of Supreme Court decisions—from the time when Justices followed the British practice of issuing seriatim opinions to the time of Chief Justice John Marshall who instituted a policy of a single opinion for the Court. This norm of consensus lasted 140 years, during which the Court decided more than ninety percent of its cases unanimously. However, modern practice has been marked by division and dissensus, which have incited rhetoric of delegitimization. Part II examines two types of consensuses. Section A discusses internal consensus, or the extent to which the Justices agree with each other. Yet accusations that the Supreme Court is politicized or illegitimate are often another way of saying that it has strayed too far from public opinion. In turn, Section B explores the effects of external consensus—that is, the extent to which the public agrees with the Supreme Court’s opinions. Part III analyzes the impact of internal and external consensus on perceptions of the Supreme Court, with a particular emphasis on the role of the Supreme Court as a judicial institution.

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*J.D., Notre Dame Law School, 2025; B.A., in Economics and Political Science, Indiana University Fort Wayne, 2021.

1 See Joseph Copeland, Favorable Views of Supreme Court Remain Near Historic Low, Pew Rsch. Ctr. (Aug. 8, 2024), https://www.pewresearch.org/short-reads/2024/08/08/favorable-views-of-supreme-court-remain-near-historic-low/ [https://perma.cc/7XB8-5LMV] (“The court’s favorable rating is 22 percentage points lower than it was in August 2020.”); Christine Zhu, Supreme Court Faces Continued Strong Disapproval, Poll Shows, Politico (Feb. 21, 2024, 1:49 PM EST), https://www.politico.com/news/2024/02/21/supreme-court-approval-poll-00142437 [https://perma.cc/932V-6GNV].

2 See Stephen Jessee, Neil Malhotra & Maya Sen, A Decade-Long Longitudinal Survey Shows that the Supreme Court Is Now Much More Conservative than the Public, 119 Proc. Nat’l Acad. Scis. U.S., June 14, 2022, at 1.

3 See Jeff Neal, Why Has the Supreme Court Come Under Increased Scrutiny?, Harv. L. Today (Nov. 16, 2022), https://hls.harvard.edu/today/why-has-the-supreme-court-comeunder-increased-scrutiny/ [https://perma.cc/M6ST-RHYN] (“[F]or the first time in American history . . . we had a president who lost the popular vote successfully nominate three people in four years to the Court that were confirmed by a Senate majority representing a minority of the nation. So, it’s not like it should be some great mystery why we have a Court that is out of step with where a majority or a supermajority of the . . . country is.” (first and second alterations in original)).

4 See id. (“[A] panel of six scholars discussing the U.S. Supreme Court resorted to the word ‘legitimacy’ nearly 40 times. And not in a good way.”); Eric Holder (@EricHolder), X (Oct. 6, 2018, 4:10 PM), https://x.com/EricHolder/status/1048666766677876738 [https://perma.cc/XU6U-XNT6] (“With the confirmation of Kavanaugh and the process which led to it, . . . the legitimacy of the Supreme Court can justifiably be questioned.”); Nick Robertson, Black Caucus Says Supreme Court Has “Thrown into Question its Own Legitimacy” with Affirmative Action Ruling, The Hill (June 29, 2023, 12:18 PM EDT), https://thehill.com/regulation/court-battles/4073706-black-caucus-sayssupreme-court-has-thrown-into-question-its-own-legitimacy-with-affirmative-action-ruling/ [https://perma.cc/MG5Y-HE6K]; Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (“When proponents of [lost] arguments, greater now in number on the Court, return to fight old battles anew, . . . [i]t fosters the People’s suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law, and it degrades ‘the integrity of our constitutional system of government.’ Nowhere is the damage greater than in cases like these that touch upon matters of representation and institutional legitimacy.” (last alteration in original) (citation omitted) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986))).

5 See, e.g., Ramesh Ponnuru, How Democrats Could Fix the Founding Fathers’ Supreme Court Mistake, Wash. Post (Sept. 25, 2023, 6:00 AM EDT), https://
www.washingtonpost.com/opinions/2023/09/25/supreme-court-term-limits-life-tenure/ [https://perma.cc/S6K4-NBM7]; Samuel Moyn, Resisting the Juristocracy, Bos. Rev. (Oct. 5, 2018), https://www.bostonreview.net/articles/samuel-moyn-resisting-juristocracy/ [https://perma.cc/3H52-BMTM]; Kanishka Singh, Alexandria Ocasio-Cortez Wants Clarence Thomas Impeached, Reuters (Apr. 10, 2023, 4:17 PM EDT), https://www.reuters.com/world/us/democratic-lawmaker-ocasio-cortez-wants-us-supreme-court-justice-thomas-2023-04-09/ [https://perma.cc/6VRR-HPMC]; Mark Joseph Stern, How Liberals Could Declare War on Brett Kavanaugh’s Supreme Court, Slate (Oct. 4, 2018, 6:53 PM), https://slate.com/news-and-politics/2018/10/brett-kavanaugh-confirmation-constitutionalcrisis.html [https://perma.cc/SP2B-MRKH]; Julia Mueller, House Democrats Tout Bill to Add Four Seats to Supreme Court, The Hill (July 18, 2022, 4:42 PM EDT), https://thehill.com/homenews/house/3564588-house-democrats-offer-bill-to-add-four-seats-to-supremecourt/ [https://perma.cc/85HG-DVNG].

6 Stern, supra note 5.

7 Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240, 2240 (2019) (reviewing Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (2018)).

8 Id.

9 This Note sometimes uses the terms “consensus” and “unanimity” interchangeably.