“Democracy in Disrepair? Examining the Continued Legitimacy of the Supreme Court”
Throughout the course of our history, debates over the proper role of the Supreme Court have animated democratic discourse in the United States. Those debates have illuminated questions regarding the role of the Court in mediating interbranch conflicts; in defining the nature, source, and scope of fundamental rights; in structuring the power exercised by the administrative state; in creating space for Congress to regulate a modern commercial economy; and more. They have revealed how small “d” democratic accountability within the context of our institutional governing frameworks remains a long-term and persistent challenge.
In recent months, the tensions reflected by those debates have erupted as an energized Supreme Court has exercised muscular authority, often in the face of popular preferences. As a result, the legitimacy of the Court is under more intense scrutiny than it has faced in years. Multiple factors have brought us to this juncture. A hyper-partisan appointments process has diminished popular perception of the Justices’ neutrality. The increased willingness of some Justices to reveal their political allegiances has further eroded public confidence in the objectivity of their rulings. The recent trend of using the shadow docket to resolve substantial, highly contested matters has undermined faith in the transparency and thoroughness of their decision-making practices. And of course, many are deeply unsettled by the fact that a conservative supermajority has flexed its power to reorder decades of settled precedent and discard norms of stability in the name of achieving long-held ideological goals. Popular support for the Supreme Court has now plummeted and is trending at historical lows, and respect for the institution – which carries with it neither the power of the sword nor the power of the purse – is eroding every day. Given these and other concerns, what steps should or even can be taken to minimize the influence of politics on federal courts, especially the Supreme Court?
The Journal of Race, Gender, and Ethnicity at Touro Law Center is an online publication that is seeking papers in connection with its annual symposium which will evaluate the current crisis of legitimacy that surrounds the Supreme Court. The symposium is scheduled for March 15, 2023. Papers may consider this issue from any perspective, including the angle which disputes the idea that the legitimacy of the Court is in question at all. Abstracts should be 250-500 words and are due by November 14, 2022. Please submit abstracts here: tgraham3@tourolaw.edu. Authors of selected papers will be invited to participate in the Journal’s annual symposium, which will take place entirely over Zoom. Completed papers should be 5000-7500 words in length and should be submitted no later than April 14, 2023, for publication in the Winter 2023 edition of the Journal. Please direct all questions to Symposium Editor, Anusha Syed, at tlc_journalofrge@listserv.touro.edu.