St. Mary's Law Journal


Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.

The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it considers what qualifies as “Lawyers Work.” Then it explores the various crises of legitimacy that have plagued the Court throughout its history. It concludes that the Court has often lost public support resulting in a legitimacy crisis by failing to decide cases through the application of lawyer’s work but has also lost public support and consequently a claim to legitimacy by attempting to resolve controversies that fall beyond judicial competence. The article concludes that the Court’s reservoir of public support is indeed deep and permits the Court to decide cases contrary to public opinion to a large extent without adverse consequence to its legitimacy. However, when the Court gets too far out of synch with public opinion, the constitutional check of the nomination and appointment power has been exercised to alter the Court’s composition and redirect its doctrine. Arguably, that is exactly what has transpired over the last few years. Consequently, the Court does not have a legitimacy crisis. Rather the constitutional system is simply self-correcting.

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St. Mary's University School of Law


Melissa Fullmer