The Supreme Court We Deserve

imageIn one of his questions during oral arguments on the Affordable Care Act, Justice Kennedy observed the judicial presumption in favor of the constitutionality of federal statutes.  The presumption is a nod to the democratic process, which itself is generally the most decisive proxy we have for institutional legitimacy.  But it is not the proxy.  If it were, no review of “duly constituted and passed” laws would ever be necessary.  The Court review of even democratically passed laws insulates us from democratic tyranny—from majorities stripping the rights of the minority, or, in a fit of imprudence, trading inalienable rights for fashionable government services.  But the Court’s presumption in favor of constitutionality is not designed to root its decisions in legitimacy.  Rather, it aims to give its decisions the perception of legitimacy irrespective of whether those decisions are actually legitimate. 

Assuming the Court actually thinks this way (and based on the President’s recent remarks, there is reason to believe it does, at least to some extent), would upholding the Affordable Care Act increase or decrease Americans’ perception of the Court’s legitimacy?  I conclude the latter, and thus that the Court’s institutional incentives inclines it toward finding the Act unconstitutional. 

First, a few more thoughts about judicial legitimacy.  Why does the Court err on the side of perceived legitimacy rather than training its focus on actual legitimacy?  For one thing, the Court does not have special access to such things.  Judging is often hard, and if it comes to the wrong answer, better that it was first made by another branch of government closer to the people and thus the source of perceived legitimacy.  More importantly, the Court, like government generally, is a self-preserving institution.  Institutions derive no benefit by virtue of being actually “legitimate” or “right” or “just.”  They benefit from being perceived as those things, as citizens are more likely to accept its decisions.  Thus, there is no incentive inherent in the nature of the Court itself to arrive at actually legitimate results. 

imageThis is not to say that the human beings acting as judges have no incentive to reach actually legitimate results.  But for the Court as an institution, the only incentive is to get the result that will be perceived as legitimate, either immediately or at some point in the not-too-distant future.  (Because of its conservative nature and insulation from politics, the Court is permitted a much longer time horizon in this regard.  Thus, it may be to the Court’s advantage to hand down a ruling that may be unpopular in the short term, but that will make the Court appear prescient and worthy of trust in the long term.)

In short, the Court’s institutional incentives include perceived short-term legitimacy and perceived long-term legitimacy.  The only other possible motivation (excluding bad faith) is judges’ personal incentive to achieve actual legitimacy, whether in the individual decision, or in the justice system more broadly, or in society even more broadly.   Mileage may vary as to whether and to what extent these translate into perceived legitimacy. 

This may seem a cynical, nihilistic way of looking at the Court, but really it’s not.  By concerning itself with the perception of legitimacy, the Court must look to the views and deeply held beliefs of society.  These beliefs thus may form the basis for the Court’s decisions.  That is not to say the Court ought to pander to those beliefs merely to boost its legitimacy index.  But to the extent those beliefs are not internally self-contradictory (e.g., slavery versus the deeply held belief in individual liberty), it is appropriate for the Court to consider them. 

To maximize its perceived legitimacy, the Court must do more than reach a certain result.  Because of the nature of judicial power, the process and analysis that goes into reaching the result also count for a lot.  Thus, a professional, intellectual, and experienced Court may be able to achieve greater perceived legitimacy than one that is less so.  However, because the Court is primarily concerned with perceived legitimacy, intellectual rigor will take the Court only so far.  One can imagine brilliant judicial decisions written in what, to lay persons, might amount to a different language.  Decisions whose philosophical brilliance render them indecipherable to the public will count for little. 

The possible outcomes of the Affordable Care Act illustrate the point.  If, in upholding the individual mandate, the decision is too intellectually ambitious and convoluted, the Court may be perceived as having used philosophical abstractions to avoid its duty to review an unprecedented overstep of the federal government’s limited and enumerated power.  But if, in finding the individual mandate violates the Constitution, the decision is not ambitious and creative enough, the Court may be perceived as having feigned ignorance in order to deal a partisan blow to a sitting president’s signature domestic policy achievement. 

If it were somehow possible to rate the sophistication of judicial reasoning, we might insist that the Court’s decisions clock in at a certain level, say, a 5 on a scale of 1 to 10.  We might conclude that decisions rating below 5 are conspicuously incurious, and that ratings above 5 are conspicuously overzealous.  In either case, differing degrees of sophistication of judicial reasoning suggests the Court may be using just the right degree in a given case to reach a particular conclusion.  Observers would rightly conclude this is illegitimate.  In reality, of course, there is no such scale to rate the sophistication of judicial opinions.  Nonetheless, we can discuss whether creative rationales like those offered by Professor Jack Balkin would, if adopted by the Court, evidence conclusion-oriented reasoning. 

On the other hand, sophisticated or convoluted judicial decisions do not necessarily suggest a conclusion-oriented Court. There are three ways to explain a convoluted decision.  First, it is simply a hard case, and thus an intricate analysis itself is necessary to achieve perceived legitimacy.  In other words, the analysis itself is the basis of the perceived legitimacy.  This frequently happens in review of technocratic agency actions where the outcome itself often does not have much impact on the average citizen.  One might criticize agencies on the basis that they result in many convoluted court decisions, thereby undermining the perceived legitimacy both of the Court and the agencies. 

Second, the outcome that will be perceived as the most legitimate requires a convoluted analysis to get there.  In other words, the outcome is the basis of the perceived legitimacy.  This assumes that legitimacy is perceived principally in the outcome, or at least that the convolution will not significantly undermine that perception.  Whether the perceived legitimacy is to come in the short- or long-term is a judgment call the court must make. 

The third possible explanation for convoluted court opinions is that the Court is convinced in the objective rightness of the outcome.  Dred Scott v. Sandford and Roe v. Wade are examples; it can hardly be argued that the Court could have reasonably presumed either decision would elevate its esteem.  Relatedly, the Court may be convinced that the outcome, either despite of or in addition to its being objectively right, is necessary to the preservation of the state and thus the Court itself.  Brown v. Board is an example. 

All things being equal, then, it is in the Court’s interest—the interest of being perceived as legitimate—to avoid convoluted analyses whenever possible. 

Consider again the Court’s possible approach to the Affordable Care Act.  Even now, more than two years after the Act was passed, it fails to garner a majority of public support.  Thus, the Court is not likely to gain any perceived legitimacy in the short term by upholding it.  The longer term obviously is harder to predict, but certainly the Court could be perceived as having bent to pressure from the President, who dared the Court to strike down the Act just days after oral arguments.  In order to uphold the Act, the Court would have to engage in a somewhat convoluted and unprecedented analysis, or rely on New Deal-era precedent, itself at a nadir of perceived legitimacy. 

The only basis left to uphold the Act is if the Court concludes it is objectively legitimate.  This is a hard case to make for the individual mandate.  At best, it is an instrumental good in the sense that it helps overcome the moral hazard created by another federal mandate that health providers provide emergency services to uninsured patients.  It also still presupposes a terribly inefficient health care system in which tax incentives cause most health insurance to be tethered to employment.  A stronger case perhaps could be made that upholding health care legislation creating a universal single-payer system would be objectively legitimate.  It probably is not unfair to say that the individual mandate is something of a necessary evil in the service of an arguably objectively legitimate end of broadly accessible health coverage.  But it is hard to characterize it as objectively legitimate in its own right. 

Note that objective legitimacy has nothing necessarily to do with whether the decision comports with the text of the constitution, or with any other theory of judicial interpretation for that matter.  This is simply to be factored into the analysis of whether it is perceived as legitimate.  A population who doesn’t give a whit about constitutional fidelity will likely find its courts likewise caring very little.  Indeed, a population that cannot be bothered to care much about theories of constitutional construction, or consistency in constitutional construction, will have little basis on which to judge the legitimacy of judicial decisions. 

This may be why the President feels he can impact the outcome of Court’s decision, calling it “not an abstract argument” and “not even a close case.”  In fact, the “abstract arguments” have already been made in prior cases handed down during the New Deal, which have continuing legitimacy problems due to FDR’s court-packing scheme leading to “the switch in time that saved nine.”  Wickard v. Filburn, the prior case that the President was likely referring to in his recent comments, itself should not have been a close case, so out of step was it with the Commerce Clause and precedent at the time of publication.  Yet, through legal abstractions and convolutions, it provides cover for federal legislation touching on any activity that, under the “aggregation principle,” affects interstate commerce. 

If we don’t care about fidelity to the Constitution and legal processes, the Court won’t, either.  If we send the message to the Court that we will cease to regard it as legitimate if it does not simply rubber stamp popular legislation, or stamp out unpopular legislation, then over time, the Court, by operation of its institutional incentives, will have no choice but to respond to the signals of an intellectually shallow public.

This would be a decline of American politics.  It would mark the end of the studious and faithful adherence to a logical and consistent continuum in the development of law.  It would usher in the flippant selection among various and disparate bodies of disjointed legal precedent to deliver the result demanded by impatient and intellectually unserious consumers of government services.  A public who is taken in by the President’s partisan catcalling of his coequal branch of government has no right to demand better of judicial decisions. 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. An interesting article.
    One of the things I find disconcerting about the dialogue on the topic is the manner in which legitimate concerns are disregarded.
    Granted, the Left wants the individual mandate– on this occasion– because they generally see government as the supreme social institution rather than (as the typical view of conservatism) a society of congenial social institutions.
    And I become more and more convinced of the disingenuousness of the Left. They tend to hold a principle long enough to establish a policy position, and then all manner of principles are rapidly discarded for the sake of the next policy position they would hold.
    In this case, they say that we should trust the government whole-heartedly and without reservation. But they seem to disregard their own advice when it comes to, say, the Valerie Plame affair.
    There is no continuity.
    Which is disheartening.
    It would seem as if fully half of the nation has no manner of intellect to view beyond the immediate and ever-present moment.
    Of course, they wish to empower government to invade the lives of its citizens. It’s fine and dandy, because it suits their policy position.
    But then, say, when someone (even their own guy) wants to try a Guantanamo detainee in a military tribunal, then government invasion of the lives of citizens doesn’t seem so palatable.
    Frankly, I’ve had about enough of Team Red and Team Blue. I don’t care to be a member of a team.
    What it comes down to, and the terrible conundrum, is that the legitimacy of the court (even though they do, in fact, hold exclusive rights in the matter) is perceived to be something entirely other than upholding the law.
    In a very real way, there is no law.

    • “In this case, they say that we should trust the government whole-heartedly and without reservation”
      Will, this is so totally wrong. Not even close.

    • “Frankly, I’ve had about enough of Team Red and Team Blue. I don’t care to be a member of a team.”

      If you’re not a team member, then from what you write, you seem to be at least a team player: “the disingenuousness of the Left,” “all manner of principles are rapidly discarded for the sake of the next policy position they would hold,” and “In this case, they say that we should trust the government whole-heartedly and without reservation.”

      I admit there are hypocrisy and paradoxes among the left, and liberal-ish persons like me are perhaps too willing to trust the state in this particular case, but to say that we all, without qualification, drink the statist Kool-Aid unreflectively and without acknowledging any of the potential dangers and contradictions suggests a certain willful disingenuousness, or at least an inability to see the logic behind any other perspective.

      • This assumes that “the Left” and “Democrats” are the same thing.
        They aren’t.
        I was proud to have voted against Ronald Reagan in my first national election. I was a lifelong Democrat, right up until about 2007, when I realized in a fairly dramatic way that the New Left believes absolutely none of the crap they say, and are able to maintain a principle only so long as to establish a policy position, after which all manner of principles are rapidly discarded. Somehow, the Democratic Party had moved away from me, right underneath my feet.
        But I have no problem with Democrats. Actually, I enjoy principled liberals. And I am fortunate to live in a place where the local politics are dominated by blue dogs.
        But I have a serious problem with the New Left.
        That doesn’t mean that I subscribe to the Republican doctrine on every point. But I find them more open to other ideas.

        Case in point:
        This is the response that I received when it was first proposed that I would write for a conservative site that already had 54 other writers:

        Your perspective differs from mine in a few areas, so it would be good to have your voice added to Publius.

        I only have a few requirements on posting…

        -No adding different colors of type.
        -No different sizes, either.
        -Always use the “more” tag after the few two or so paragraphs. This helps more clicks on the blog, also helps keep the main page displaying as many posts as possible, and helps with post navigation on the main page.

        Finally, I try to avoid short, quickie posts. I really am looking for thought out posts from between 300 and 700 words. Longer is OK, but little short ones I do not like. This is not a “thoughts” blog where we post single paragraphs and a link, but more of an Op Ed blog where subjects are treated a bit more seriously. Anyone can throw up a ton of links, but I want people who are thinking on Publius, not just redirections to other blogs.

        What do you think?

        Very, very different than what I get from the Left.
        There’s no way that I’m going to believe that “tolerance” is all about enforcing uniformity of thought.
        I find the Right to be more honest.

        • You’re right, I did conflate “the left” with “liberals,” and I don’t (anymore) consider myself really as part of the left. I, too, dislike a lot of what I see as the disingenuousness and dishonesty of many on the left I have known–especially the “ends-justifies-all-means” marxists. I still think you are overgeneralizing, however, although perhaps you have a larger sample than I do.

          I’ll add that I’m not, and have never been, a Democrat, although you might not necessarily know it by most of the comments I make here and elsewhere, or from my recent (since 2004) voting record.

          • In general, I believe the Left makes numerous fatal errors in attempts to tie grand themes to their policies to make them sound high-minded and noble. It becomes apparent when you reject the theme. When you start in on that, “Well, you can say that, but it sure looks like…” the whole thing breaks down.
            I have some views that are fairly unpopular with the Republican Party. I am a journeyman in a trade union, and I favor cap-and-trade, to name the two big ones. They tolerate my personal idiosyncracies a lot better than the Left. I don’t know if I’m all that persuasive, but at least they’re willing to expose themselves to a differing view without the cat-calls; and this even though many of them still see unions and immigrants as their natural enemies rather than as natural constituencies (which I find to be more the case).

            In general, I do tend to like your comments, or the fact they seem more thoughtful than partisan.
            Personally, I don’t care for Cheetos, but I don’t make a point of mentioning my hatred of them in every comment. Likewise, if the only point of my commenting were to announce a party affiliation, I could easily change my avatar to either a red ‘R’ or a blue ‘D.’
            I think the League is still reeling a bit from its ill-fated (but thankfully, temporary) merger with Balloon Juice.
            And I think of you as being more of the old-style commentariat that brought frank discussion, which was a great part of the appeal of the League in the first place: a blog about politics where people could engage without being political.

  2. Overall a good analysis, but I think your conclusion is not sufficiently supported. The public may not strongly support PPACA, but that doesn’t mean they necessarily find it illegitimate; rather, they may just find it bad policy. If the number of those folks is sufficient, a ruling upholding its constitutionality is not going to be particularly troublesome along the legitimacy axis.

    • James,

      For purposes of the analysis, whether the public finds a law illegitimate or merely bad policy might be just a difference of degree. (More sophisticated members of the public will appreciate the qualitative difference, i.e., that the Court should strike down illegitimate law, but leave legitimate-but-stupid laws alone. The extent to which the American public appreciates important distinctions like this is a troubling question I raise but do not try to answer in the post.)

      At any rate, there is little concern that the Court will take a plunge along the legitimacy axis due to this decision alone. I merely argue that a decision holding the Act unconstitutional would be at least slightly better for the Court in terms of perceived legitimacy than upholding the Act would.

      • At any rate, there is little concern that the Court will take a plunge along the legitimacy axis due to this decision alone. I merely argue that a decision holding the Act unconstitutional would be at least slightly better for the Court in terms of perceived legitimacy than upholding the Act would.

        I appreciate this clarification. The wording of your last two paragraphs, and especially your last paragraph, seems to suggest that a decision upholding the mandate–“This would be a decline of American politics. It would mark the end of the studious and faithful adherence to a logical and consistent continuum in the development of law”–would be a precipitous destruction of the temple unlike any other we’ve seen so far.

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