In Defense of a Political Court

By Terri Jennings Peretti | Go to book overview

CHAPTER 6
A Political Court and the
“Crisis of Legitimacy”

ONE OF the primary arguments that conventional scholars invoke against the idea of political Court and policy-motivated justices is the “legitimacy crisis” that they believe will ensue. They argue that a political Court is more vulnerable to political attack and is likely to lose its legitimacy, the primary source of its power. The loss of its power in turn means the loss of the Court's ability to carry out its specialized and valuable role. No longer will the Court be able to protect constitutional rights and liberties and politically vulnerable minorities from majoritarian attack. And no longer can the Court promote and protect the ideal of the “rule of law” and the triumph of reason over mere will or force.

This chapter will address the empirical issue of whether, in fact, public support for the Court is a function of whether it restricts itself to an impartial, law-interpreting functions and accordingly behaves in an apolitical manner. Empirical evidence from the Court's history and from public opinion research simply does not support this view.

The idea that the Court's legitimacy is uniquely dependent on public esteem and reverence and will, therefore, be destroyed if the Court is too political persists despite strong evidence to the contrary. Accounting for that persistence is the value of the legitimacy crisis myth to conventional constitutional theorists wishing to advance their particular vision of the Court's appropriate role in American democracy.


The Crisis of Legitimacy Argument

Conventional legal scholars believe that a Court must neither confront political issues too readily nor dispose of them with regard to personal political preference or political calculation. If the Court fails to play its properly limited role or fails to issue opinions that represent careful, thorough, and

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