When Obergefell came down in late June, Justice Scalia’s dissent became a media storyline in its own right. From “mummeries,” hiding his “head in a bag,” to “[a]sk a hippie” – the last of which lit up Twitter – Scalia managed to write himself into the headlines (again). Not surprisingly, Jon Stewart used his platform to poke fun at Scalia. Less lightheartedly, and picking up on the central leitmotif of the dissents – especially Justices Scalia’s and Alito’s – GOP opinion leaders and politicians denounced the Court’s ruling in vituperative tones. Mike Huckabee advocated for resistance to an “imperial judiciary,” while Ted Cruz revivified interposition and nullification. The Family Research Council analyzed the case for its members by highlighting the dissents’ claims of “social policy” created by “unelected judges.” Seven states – Texas, North Carolina, Alabama, Arkansas, Kentucky, Ohio, and Tennessee – have had public officials opt out of recognizing marriages. Texas’s attorney general issued an edict contending that the Court “ignored the text and spirit” of the Constitution, “manufacture[d]” a new right, and claiming the “Court weakened itself and weakened the rule of law.” One Louisiana supreme court justice wrote (in a concurring opinion in a case dismissing as moot a SSM rights claim in light of Obergefell) about the “horrific impact these five lawyers have made on the democratic rights of the American people.” Another dissented on the basis that he did not “concede” to the Court’s ruling. The list could go on.
Compare, for example, the reaction to Obergefell versus the closest chronological analogue: Casey. The reaction to Casey was noisy, but both sides’ partisans viewed the decision as a loss. Even Roe v. Wade was met with a comparatively tepid reaction outside of the Catholic Church and the then-comparatively small band of pro-life activists. It barely registered with Nixon and the White House. Indeed, some evangelical groups, like the Southern Baptist Convention, adopted a “middle ground” approach to the issue.
But the reaction to Obergefell, and the themes it struck, are more reminiscent of the Southern Manifesto (formally known as the Declaration of Constitutional Principles). “Naked power” vs. “judicial putsch.” Invocation of the Founding Fathers. The lack of an explicit textual basis for either decision. An original meaning spin on the 14th Amendment. The Court overturning a long-held societal construct. States’ rights.
Of course, no one thinks there will be years of inaction in enforcing this ruling (like Brown). And many mainstream GOP officials announced begrudging compliance with Obergefell. So this makes it easy to dismiss the reaction and rhetoric detailed above – of course the losers in this culture war fight invoked overheated rhetoric. But the resentment of those in this culture war loss — it’s really just a battle as the forum for this fight will now be litigating religious freedom and “conscience” claims — should not be pooh-poohed. Nor should it be overlooked that it appears some of the justices’ rhetoric in dissent helped fan these partisan flames. And it seems worth noting that the Court’s approval ratings are down over the past decade while its disapproval numbers are up sharply. In short, is the reaction to Obergefell a sign of the Court’s decreased legitimacy?
A fair amount of political science research on the Court’s legitimacy counsels against knee-jerk reactions. The conventional view is that the Court’s legitimacy is based on its “diffuse support” that the Court shores up by “pointing towards its distinctive ‘non-political’ role in the American political system.” (Gibson and Caldeira 2009). The Court as an institution, perhaps counter-intuitively given the political nature of its big-ticket cases, also enjoys the support of those more knowledgeable about the Court. (Ibid.). Gibson and Caldeira argue that the Court’s diffuse support is “obdurate” — even Bush v. Gore did not move the needle much over the long-run. (Ibid.).
Why does the Court have this reservoir of good will? The answer seems to be its role as a legal institution as opposed to a perception of the Court as blatantly political. Tom Clark puts it nicely: “Because the public perceives the Court as acting on higher, constitutional authority in the capacity of a legal institution rather than on ideological grounds as a political institution, divergent decisions are perceived as acceptable” (Clark 2011).
The conventional view, however, is being called into doubt. Partisan polarization has infected not only elites, but also the public (e.g., Abramowitz and Webster 2015). Indeed, elite partisan polarization has caused the polarization we have seen on the Roberts Court: the Republican appointees, with occasional apostasies by Justice Kennedy, largely vote the “party line” as do their Democratic counterparts (Baum and Devins 2015). How the public learns about Supreme Court decisions is complex (Gibson and Nelson 2014), but there is a substantial body of research arguing that elite rhetoric and framing help form public opinion (e.g., Jacobs, Druckman, and Ostermeier 2004). And we know that many high-information partisans choose to get their news from partisan news sources such as Fox News and MSNBC and similar content in different mediums (Prior 2013). Given this, it might be troubling that being exposed to unilateral “media frames” results in more opinion change (Chong and Druckman 2013). In fact, a recent study shows that partisan depictions of Supreme Court decisions affect how people view the Court’s decisions (Nicholson and Hansford 2015; see also Bartels and Johnston 2013).
There has been some push back to this revisionist literature, based on, among other things, the idea that the Court is ideologically divided roughly 50/50 such that this creates legitimacy gridlock — each side has decisions to like and oppose (Gibson and Nelson 2014). (N.b., one might question if this is even accurate as the Court is rather plainly more conservative overall than not).
In any event, consider the research from this angle: if the Court’s legitimacy flows from its standing as a legal institution, then what do we know about why the public holds Congress in so little regard? A set of two scholars in two books have persuasively argued that the public dislikes Congress for two separate but connected reasons: (1) because of the very public nature of Congress itself (professionalized politics, veto points, lobbying, prickly debate, compromise necessary for legislation); and (2) the public views Congress a self-dealing, self-interested institution (Hibbing and Theiss-Morse 1995, 2002). In other words, perhaps the Court’s legitimacy is mostly easily understood as its ability to differentiate itself from members of Congress.
Beyond the rhetoric of the justices’ dissents appearing to deliberately undercut the legitimacy of the Court’s decisions (this issue is not limited to Obergefell), there is a celebrity culture that has grown up around the Court. Following up on Judge Posner’s remarks on this issue, Rick Hasen recently wrote a short essay that is a good first cut at understanding “Celebrity Justice.” For example, and to no one’s surprise, Hasen shows that eight of the nine justices on the current court occupied the top nine spaces in average public appearances per justice per year dating back to 1960 (a useful but somewhat crude measure (as Hasen admits)). What is more, Hasen shows that public appearances during the Roberts Court (through 2014) have increased 820 percent since the 1970s (1970-1979), and grown significantly just since the 1990s. The paper also notes some of the trappings of this celebrity: “Notorious RBG” as embraced by Justice Ginsburg, Scalia’s tart tongue in public Q&A sessions, and the justices’ appearances before groups that are ideologically aligned with their priors (e.g., the ACS for one side and the Federalist Society for the other).
To be sure, there is a relatively small audience for these appearances — the Article III Cult remains somewhat cloistered. But if the Court’s long-term legitimacy is based on its ability to preserve public perception of it as a non-political, legal institution, then overheated dissents with the justices reaching for one-liners – long a characteristic of Scalian rhetoric, and a trait Justice Roberts seems to have picked up on (“What chumps!”) – and “Notorious RBG” taking to the pages of the New York Times to denounce rulings as “activist,” might be affecting the public’s perception. And this is to say nothing of the competing legal farm teams each side supports thus helping to reinforce the polarization of legal elites.
All of this is not to sound like a scold or a Cassandra. And exciting interdisciplinary research is being conducted to further explore the issues affecting the Court’s legitimacy. It is too early for normative arguments regarding the above until we better understand the empirical evidence. But the milieu surrounding the Court right now – celebrity culture, polarization on the Court which perhaps leads to overwrought and delegitimizing dissents – is not only a cause for further research, but perhaps consternation as well.