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Monday, September 26, 2022

Situation-Altering Invocations of "Legitimacy"

There have been a lot of interesting interventions in the discussion of the "legitimacy" or "illegitimacy" of the Supreme Court recently. Some of them are simply collecting on my to-read list, so perhaps I should say interesting-looking interventions. But I am looking forward to reading recent pieces by Thomas Donnelly and, especially (based on the abstract), Or Bassok, among others. I think the general question is legitimate, so to speak. But I would add one note of caution about the broader universe of discussions of Supreme Court legitimacy.

At least post-Fallon, legal scholars are already accustomed to parsing the word "legitimacy" into several possible senses, including moral, legal, and sociological legitimacy. I would add one more distinction, which refers less to the meaning of the word and more to the nature of its invocation. There are good-faith descriptive invocations of "legitimacy," of course. There are also performative or situation-altering invocations of legitimacy. They take at least two forms. One is the deliberate invocation of the term in order to create concerns about legitimacy. Sometimes--perhaps often--the phrase "I have concerns about the legitimacy of the Supreme Court," like the injunction not to think about an elephant, is a way of attempting to create concerns about legitimacy.

The speaker may or may not also have genuine concerns of his or her own about Supreme Court legitimacy. But that is not necessarily the point of the invocation and may be quite separate from it. The point is to cause or encourage the proliferation of public concern about legitimacy, so that it takes on a life and momentum of its own, for electoral, political, fundraising, legislative, discursive, purely self-serving, or other purposes. (In a society that treasures and monetizes prestige and commodifies every "creative" or discursive act, self-interest should almost always be a factor in considering even the most sincere actions. One gets more attention for calling a court or decision "illegitimate" than "bad" or "wrong.") The speaker's own concerns about legitimacy may be nuanced and specific; the invocation is not, is perhaps not intended to be, and encourages the generation of non-nuanced concerns about legitimacy. 

No doubt it has ever been thus. I'm reading Brad Snyder's enjoyable Frankfurter bio right now (more on that, and on incipient Frankfurter revivalism, later, I should hope), and one striking thing about it is just how much pretty well everyone named in the book was concerned with naming and capturing the agenda. Capturing it by naming it in many cases: anyone who took con law when I did, and perhaps still today, will not be surprised to see just how much of the received narrative about its history, accurate or otherwise, was crafted on someone's typewriter and went on to become a free-floating, situation-altering "reality." But the phenomenon has certainly not slowed down and, I think, is changed and enhanced by the combination of wicked social media and the modern academic's ambition and language of "public engagement." And that in turn leads to a related but somewhat separate second form of situation-altering invocation of "legitimacy" or "illegitimacy." Invoking legitimacy doesn't just encourage others to have concerns about legitimacy; it encourages them to put any concerns they may have about the Court, or about particular decisions, into the language of legitimacy. Even if the initial invocation is strategic, ultimately that language shapes and constrains our thinking, just as Bakke's invocation of "diversity" created a half-century of diversity-talk, even if we could have been talking and thinking about the same issue through other and perhaps better lenses. 

We are accustomed enough in other areas of politics to attempting to distinguish between genuine grassroots sentiment and astroturfing. The astroturfing may ultimately succeed in creating grassroots sentiments that we should take seriously, but at least at the outset we are accustomed to treating those efforts skeptically, knowing that some sort of game is afoot. I would say the same thing about the profusion of invocations of concern about the Court's legitimacy, first from professionals and then from everyone else. Some of them are entirely sincere. But not all of them, even by ostensibly reputable people, are. And the second-order invocations of legitimacy concerns that they encourage may be sincere, but may also just be a case of people fitting a different concern--say, about hating a particular decision or wanting a different political lineup on the Court--into the only, or most prevalent, or most convenient, language that is available to them. That is so even if the actual concerns were or are somewhat different, such that we would think more clearly and be better off talking in terms of good or bad decisions or outcomes, or about who we want to have and exercise power. I am focusing in particular on efforts to encourage the belief that the Court is illegitimate, because that involves changing a perceived baseline and because it involves adopting a particular linguistic frame. But surely something similar can be said about language that treats the Court as legitimate or reassures others that it is and that there's nothing to see here. I believe there is a real legitimacy issue here, and probably that there is always such a concern, at least along some dimensions of the word. But we should approach invocations of legitimacy and illegitimacy with some skepticism, recognizing that some first-order invocations are astroturfing, and some subsequent invocations are a matter of adopting language that has been foisted upon the subsequent speaker with the intent of shaping, harnessing, and, in some ways, limiting their vocabulary and worldview. We should remember that when people say "legitimate" or "illegitimate," they may actually care about something else, or at least that they did before they were chivvied into adopting a particular linguistic framework.  

Posted by Paul Horwitz on September 26, 2022 at 12:44 PM in Paul Horwitz | Permalink


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