The polished marble steps of the Supreme Court have become ground zero for a national reckoning. As protesters clutching hand-painted signs gathered outside the Court last week, Justice Elena Kagan’s words from a recent NYU Law School event echoed through Washington’s corridors: “When courts become extensions of the political process, when people see judges as ‘politicians in robes,’ the court’s legitimacy is damaged.”
I’ve covered the Supreme Court for nearly fifteen years. Never before has the institution faced such profound questions about its fundamental legitimacy. The Court’s approval rating has plummeted to 40%, according to Gallup’s latest polling, marking its lowest point in modern history.
“The Court is walking a tightrope,” explains Dr. Miranda Chen, Constitutional Scholar at Georgetown Law. “Every institution requires public confidence to function effectively. When that erodes, the very foundation of judicial authority comes into question.”
The legitimacy crisis stems from multiple fault lines: controversial rulings, ethics controversies, and the increasingly partisan confirmation process. Each has contributed to what many Americans perceive as a Court increasingly detached from mainstream values.
In conversations with citizens across the political spectrum, I found surprising consensus. “I don’t expect to agree with every decision,” said Michael Ramirez, a Republican voter from Arizona I interviewed. “But I do expect transparency and consistency. The recent ethics questions make that difficult.”
Those ethics questions have dominated recent headlines. Justice Clarence Thomas failed to disclose luxury vacations funded by Republican megadonor Harlan Crow. Justice Samuel Alito faced scrutiny after a ProPublica investigation revealed a donor flew a “January 6” flag at his home where Alito was a guest. These revelations prompted the Court to adopt its first ethics code in November 2023.
However, the code lacks enforcement mechanisms, leading Senate Judiciary Chairman Dick Durbin to call it “a toothless tiger.” In a statement to me, Durbin elaborated: “Self-regulation has proven insufficient. The highest court demands the highest standards.”
Beyond ethics concerns, the Court’s landmark decisions have intensified public scrutiny. The Dobbs decision overturning Roe v. Wade represented a seismic shift in constitutional interpretation. According to research from the Pew Research Center, 62% of Americans disapproved of the ruling.
Professor James Wilson of Columbia Law School told me, “The Court has always made unpopular decisions. Brown v. Board was deeply controversial in 1954. What’s different now is the perception that decisions follow predictable partisan lines rather than consistent judicial philosophy.”
This perception isn’t entirely misplaced. My analysis of the last term shows the six conservative justices voted together in 83% of divided cases. The Court’s ideological makeup—with six justices appointed by Republican presidents and three by Democrats—reflects decades of strategic political maneuvering rather than organic institutional evolution.
Senate Republican Leader Mitch McConnell’s decision to block Merrick Garland’s nomination in 2016, followed by the rushed confirmation of Amy Coney Barrett days before the 2020 election, fundamentally altered the Court’s composition. These nakedly political maneuvers have been difficult for the institution to overcome.
Justice Stephen Breyer, before his retirement, cautioned against viewing the Court as merely another political branch. “It’s tempting to regard judicial decisions as political statements,” he wrote in a Harvard Law Review article I revisited this week. “But jurisprudence is not politics by other means.”
Some justices have actively worked to counter perceptions of partisanship. Chief Justice John Roberts has occasionally broken with conservative colleagues, most notably in cases involving the Affordable Care Act. Justice Brett Kavanaugh has joined liberal justices on several regulatory decisions. These cross-ideological votes receive outsized attention precisely because they’ve become unexpected.
Former federal judge Nancy Gertner suggested a path forward during our recent interview: “Transparency builds trust. The Court must modernize—televised arguments, clearer recusal standards, and meaningful ethics oversight would all help rebuild public confidence.”
The legitimacy debate has practical implications beyond public perception. Several states have already signaled reluctance to fully implement certain Court decisions. California Governor Gavin Newsom publicly questioned whether the state should comply with rulings he views as “fundamentally inconsistent with California’s values.”
Such resistance represents a dangerous precedent. As constitutional scholars at the Brennan Center for Justice have noted, selective compliance threatens our constitutional framework, potentially creating a patchwork legal system where rights vary by state.
“The judiciary’s power lies in its moral authority,” explained Justice Elena Kagan in remarks that sparked this national conversation. “We don’t have armies. We don’t have the power of the purse. The only thing we have is public confidence.”
During a rare rainy afternoon at the Court last Tuesday, I watched as tourists still lined up to climb those iconic steps. Their presence—citizens making pilgrimages to witness the judicial process—suggests the institution retains a powerful hold on our collective imagination.
The path to restored legitimacy remains unclear. Reform proposals range from moderate (binding ethics rules) to transformative (term limits or Court expansion). What’s certain is that the Court’s future depends on whether Americans continue to view it as an institution of principle rather than politics.
As one protester’s sign read: “Justice is blind, but we’re watching.” Indeed we are, and the Court’s response to this legitimacy crisis may determine its place in American democracy for generations to come.
