Why the end of Roe could mean the end of the Court’s legitimacy

The conservative majority on the Supreme Court has reportedly decided to overturn Roe v. Wade. While this is a short-term win for the conservative movement, it also could mean the beginning of the end of the court’s legitimacy.

The power and effectiveness of the Supreme Court relies heavily on an intangible quality: the public perception of its institutional legitimacy. Unlike the executive and legislative branches, the Supreme Court lacks an enforcement mechanism. It entrusts the federal government and the individual states with enforcement of its rulings. As a result, the institution of the Court cares deeply about its appearance as a neutral arbiter of legal disputes. If the Supreme Court is considered just another partisan branch of government, it is structurally easier to ignore, meaning future rulings may become irrelevant.

The potential for a legitimacy crisis is likely why conservatives have vowed to punish the individual responsible for leaking the draft opinion. A Supreme Court without the trust of the public or legitimacy in the eyes of other political actors is dangerous for the American political system.

But the crisis hasn’t entirely been foisted on the institution from the outside. The Court may have brought the end of its legitimacy upon itself by becoming more openly partisan.

At the federal level, Democrats have little immediate recourse to the conservative majority on the court. Congressional Democrats don’t have the votes to codify Roe, and centrist Senators such as Joe Manchin and Kyrsten Sinema have never backed off their pledge not to end the filibuster or expand the Court. 

That means that in the short to medium term, the Supreme Court’s rulings will stand. But does that mean that Blue America will sit by and accept conservative rulings on highly contentious issues surrounding fundamental rights? What happens if the Supreme Court goes further than leaving the issue up to the states and decides to ban abortion everywhere, bans contraceptives, or constricts the rights of marginalized groups in other ways? 

It is possible that in the future, Blue America will refuse to enforce the rulings of a conservative court. Americans’ trust in institutions has already been falling for decades, and trust in the Court has been hitting new lows. If the current Court decided to ban abortion everywhere, would President Biden use federal power to attempt to force states to comply? It is difficult to envision him doing so. He has called a woman’s right to choose “fundamental.” Even a Republican President might find it difficult to manage a united front of blue states which refuse to constrict the reproductive rights of women. This opens up the possibility of a future where the Supreme Court’s influence shrinks considerably.

Because the current makeup of the Court has been the outcome of a highly visible political process with the end of Roe as its ultimate goal, this could be the decision that effectively seals the Court’s fate. It is likely to be seen as another partisan actor, each justice simply out to do the bidding of their political party.

A country in which the highest court is ineffective is one that presents many potential dangers. If courts can’t effectively arbitrate disputes, parties may turn to other, less palatable means. But if gutting Roe leads to the end of the court’s legitimacy, the blame should fall squarely on the Justices themselves.