Federalist Society

• That’s the momentous question the U.S. Supreme Court will consider in Trump v. Anderson, a case being argued before the justices on Feb. 8, 2024.
• The case involves the justices wading into the unfamiliar waters of the 14th Amendment’s insurrection clause.
• That polarization has led people to shift their support for the court based on their perceptions of the court’s partisan leanings.
• No matter how hard the justices work to head off negative perceptions of the court, they have been unsuccessful at restoring their institution’s legitimacy.

‘My judges’

• He talks about the court system not as an independent branch of government but as a political institution whose positions should align with his own.
• In his Jan. 6, 2021, speech before the attack on the U.S. Capitol, Trump sounded miffed at the three justices he had nominated to the Supreme Court.
• But historically, presidents were careful to discuss the courts in legalistic terms and avoid politicizing the judiciary.
• Once the Senate confirmed his nominees to the Supreme Court, Trump referred to Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett as “my” judges.

Increased criticism, decreased legitimacy

• Framing the Supreme Court as a political institution beholden to the president diminishes the court’s legitimacy in the eyes of the public.
• Research shows that people’s support for the court decreases when a politician they like criticizes it.
• And that dramatically decreases its legitimacy.

Maintaining authority

• The court lacks the literal force or money to enforce its decisions.
• Consider the Supreme Court’s famous 1954 ruling in Brown v. Board of Education, which ordered the end of school segregation.
• Those institutions enforce Supreme Court decisions only because the public believes the court is a legitimate legal institution with the authority to make decisions about the law and get them enforced.
• Vance, a Republican from Ohio, suggested in a recent interview that the president could defy the Supreme Court.

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.