The Post-Legitimacy Court

For a long time, for both Justices and many observers, “legitimacy” was a focal criterion for assessing the Supreme Court’s performance. But what if the Court, or a big enough faction of its Justices, dropped legitimacy as a concern or goal? What if enough Justices felt that there was big enough of a chance to make fundamental transformations in the law that it was not only acceptable but necessary to deteriorate the institution’s standing—or scrap it altogether? Our proposal is that the performance of the contemporary Supreme Court prompts just this question. The current majority’s zeal to validate its longstanding unitary executive theory in collusion with President Trump raises the possibility of a post-legitimacy court most obviously, but the evidence for the abandonment of what had been a traditional goal and metric is far more pervasive. If our descriptive proposal is that the Supreme Court’s majority has relinquished legitimacy as a criterion of its own performance, our evaluative corollary is that we should cease pining for its return, and draw the consequences of living in the aftermath.