Is the Roberts Court Legitimate?

Michael S. Greve

Current Issue

The question of whether the current Supreme Court led by Chief Justice John Roberts is "legitimate" may sound paranoid or absurd at first, and unworthy of serious consideration. After all, each of the nine justices on the Court was nominated by a president and duly confirmed by the Senate. And by at least one reasonable measure, that of sheer judicial competence and the overall quality of the justices' opinions, the Court clearly ranks among the very best in our history. Still, an increasingly vocal contingent of pundits, politicians, and even prominent scholars, particularly on the left, insists that the Roberts Court is not legitimate.

Critics charge that the Court's conservative 5-4 decisions systematically favor powerful interests. Moreover, they argue the Court has been unfairly stacked by Senate majority leader Mitch McConnell, in a highly irregular fashion and with the support of a right-wing cabal financed by rivers of dark money, and by President Trump, who is also not wholly legitimate. Advocates of this position have proposed to impeach Justice Brett Kavanaugh, the newest conservative addition to the Court; to pack the Court with liberal-leaning justices as soon as the opportunity arises (that is, after President Trump is removed or defeated in the November election); to ignore or disobey the Court's decisions; and to curb the federal courts' jurisdiction. 

Perhaps surprisingly, the justices themselves also worry about the Court's legitimacy, albeit in a different way. Chief Justice Roberts has repeatedly lamented that the Court's public acceptance as an impartial arbiter of constitutional rules has suffered in the polarized political environment. He has sternly reminded the president that there are no "Obama judges" or "Trump judges," only independent federal judges who swear an oath to uphold the Constitution and take it seriously. Justice Neil Gorsuch expressed identical concerns in his recent book, A Republic, If You Can Keep It. Highly respected appellate judges appointed by President Obama as well as President Trump have echoed the same theme with a palpable sense of urgency.

Both critics and supporters of the Court and the Trump administration warn of a constitutional crisis. One side decries the prospect of a Latin-American-style regime with an oligarchy and a judiciary at a lawless president's command; the other deplores an unhinged "Resistance" movement that calls the Supreme Court's legitimacy into question. Both fears seem overwrought, or at least wildly premature. The president has stacked the courts not with loyal cronies but with dyed-in-the-wool constitutionalists he barely knows. If he wants to overthrow America's constitutional order, this is an odd way to go about it. As for the attacks on the Court, our history teems with them. They featured prominently in the antebellum era, the Progressive era, the New Deal era, and the civil-rights era with its agitation to "Impeach Earl Warren," the chief justice on the Court during the 1950s and '60s. Somehow, the country, the Constitution, and the Court all survived.

Still, two trends provide ample cause for concern. The first is the gradual waning of the Court's latent legitimacy — that is, the general public sense that the justices aren't mere politicians in robes and that they are by and large trying to do the right, constitutional thing even if their decisions are obviously colored by ideology. (This is Chief Justice Roberts's main concern.) The second worrisome development is what Yale law professor Jack Balkin has called "constitutional rot": the erosion of "small-c" constitutional rules that aren't in the constitutional text but are nonetheless generally observed as conventions to make the institutional system work. Constitutional rot occurs when the president tweets that he cannot get a fair ruling from a "Mexican judge" or "Obama judges." It occurs when U.S. senators — in an ill-named "friend of the court" brief — threaten the Court with retaliation unless it reaches the "right" result in a pending case. One can dismiss such exploits as uncivil talk. As Justice Gorsuch has forcefully argued, however, civility matters a great deal, and uncivil talk can be deeply corrosive.

Both trends — waning judicial legitimacy and constitutional rot — long predate the Trump administration. Both have proceeded far enough to become alarming. And they are interrelated. For example, in 2013, then-Senate majority leader Harry Reid broke the filibuster rule for judicial appointments with the explicit purpose of stacking the D.C. Circuit Court of Appeals. Senator McConnell in turn refused to consider President Obama's nomination of Judge Merrick Garland to the Court. Then came the Kavanaugh nomination and the hardball tactics on both sides, and the next nomination fight may prove more destructive yet. The question of "who started this" preoccupies partisans on the left and right, but it is beside the point. Everyone acknowledges the erosion of once-conventional rules, and the cost to the Court's legitimacy as an institution.

Perhaps, though, the fact that these pernicious trends are connected offers a way out of our current predicament. Perhaps the Court could protect its own latent legitimacy, and even restore it a bit, by fighting constitutional rot.

This will not be easy. For the most part, future developments related to rule erosion and judicial legitimacy depend on factors that the Court itself cannot control. But the Court may be able to help itself, and the rest of us, by addressing the principal form of constitutional rot: the steady accretion of executive power.

WHY LEGITIMACY MATTERS

Political scientists broadly agree that public confidence in the Court has declined since about 2001, though not as precipitously as public approval of Congress. Some scholars have argued that public confidence depends primarily on the Court's partisan composition and rulings; others find a reservoir of "latent," "diffuse" public support for the Court, such that people will respect the Court as an institution even when they disagree with some or even most of its rulings. Regardless of how one measures public approval of the Court, the question matters greatly.

Reading Article III of the Constitution gives one a sense of just how vulnerable an institution the federal judiciary actually is. Our founding document provides for a Supreme Court with original jurisdiction over cases that involve foreign ambassadors and disputes among states. That's it. The federal courts do not exist unless Congress creates them, and they cease to exist when Congress abolishes them. Likewise, the courts' jurisdiction is only what Congress says it is. Except for the judges' and justices' salaries (which cannot be diminished), the judiciary depends on Congress for its budget. Congress may impeach judges or justices, and the courts' statutory decisions are subject to congressional overrides. And the Court has no army to enforce its rulings. It depends on voluntary cooperation or at least acquiescence — by political actors, by private citizens — to make its rulings stick. That is why Alexander Hamilton famously called the judiciary "the least dangerous" branch, and why legitimacy — public acceptance and support — matters for the Court. 

In an article written more than a half century ago, Yale professor Robert Dahl argued that the Court cannot long resist the dominant coalitions in American politics. Politicians (especially presidents) are very unlikely to appoint justices who will block their agenda, and are highly likely to appoint justices who are on board with it. Thus, one should expect aggressive judicial review only when an "old" Court, appointed by a political coalition on its way out, confronts a new, dominant majority coalition. That, of course, is what happened in the early years of the New Deal. (Sure enough, that period brought fierce attacks on the Court's legitimacy, culminating in President Franklin Roosevelt's plan to pack the Court.) But the anti-New Deal majority on the Court could not and did not last. Though the Court-packing plan failed, Roosevelt soon appointed "his" justices. And those appointees and their successors supported the program of the New Deal coalition until that coalition itself collapsed in the 1970s.

Dahl's contention that the Supreme Court will enact the program of the dominant political coalitions except under unusual, short-term circumstances spawned a gargantuan literature. The most recent contribution to that literature is Repugnant Laws, a splendid book by Princeton professor Keith Whittington, who argues that Dahl overstated his case, though perhaps not by much. Majority coalitions in American politics are rarely very cohesive, and Whittington shows convincingly that this gives the Court a bit of running room. Two additional factors qualify Dahl's thesis and are worth noting. 

First, Congress needs the courts to implement its programs. And because Americans love big, ambitious federal programs but loathe a large and intrusive bureaucracy to enforce them, the modern Congress has committed the enforcement of huge swaths of law to private plaintiffs and federal courts — including securities law, discrimination law, health and safety standards, labor protections, and environmental regulations, just to name a few. Thus, even as the Court cannot defy the dominant political coalitions, those coalitions need the courts. This two-way dependency provides the Court with a measure of institutional autonomy. 

Second, the Court is still widely viewed as the guardian of a constitutional order people generally like. And if the Court won't protect that order, who will? As Yale law professor Bruce Ackerman observed long ago in a slightly different context, the Court has "inherited our revolutionary constitutional charisma." There are reasons to be nervous about the extent to which we tend to conflate constitutional supremacy with judicial supremacy — as if the political branches had neither a right nor a duty to articulate their own constitutional views in the course of their business. Still, there is something to be said for the Court's inheritance. In Latin-American and some Eastern-European countries, revolutionary constitutional charisma was inherited by politicians — frequently generals — who fought the revolution and who promptly sidelined any court that might get in the way. The same could have happened here, and we're fortunate it didn't.

LEGITIMACY IN CONTEXT

Considerations of legitimacy — the political and public acceptance or acceptability of judicial decisions — will invariably weigh on the Court. That was true in 1803, when John Marshall wrote his opinion in Marbury v. Madison; it was true in 1937, when Roosevelt attacked the Court's anti-New Deal rulings; and it is true now. Legitimacy considerations come with the Court's constitutional design as both a court of law and a branch of government — co-equal, supposedly, but powerless to strike back if the other branches were to make a real run at it. Even so, the Court is not, or need not be, focused entirely on its political and public standing. Fissures in political coalitions, institutional dependencies, and the Court's constitutional inheritance provide it with partial institutional autonomy.

How these tensions play out at any given time depends on the political context. For the Roberts Court, that context is defined by five features of our political environment. All are familiar, some drearily so, but a synopsis will help us to consider what the Court could or should do to shore up its legitimacy.

The first, most obvious feature is the intensely partisan and ideological polarization of American politics at all levels. That trend has been with us for about four decades, and it shows no signs of abating. It has shaped the Court, and the justices are acutely aware of it.

Second, in contrast to earlier periods of American history (especially periods that have shaped our understanding of the Court's role in politics), there is no dominant political coalition. There is nothing like the Republican coalition that dominated American politics during the pre-New Deal era, and nothing like the New Deal coalition that Roosevelt cobbled together. No such coalition, and no transformative presidency that might create such a coalition, will come about in the foreseeable future. Foremost among the reasons for this is the professionalization of our politics. In an age when parties can target and mobilize and gerrymander voters household by household, a party that loses elections time and again is leaving something on the table. That is not going to happen.

The third salient feature is the unprecedented degree of social mobilization that bypasses political institutions — institutions that have traditionally acted as intermediaries between citizens and the state, including the parties, the Congress, and the establishment media. This disintermediation is a consequence of improved technology and of economic abundance. The NAACP, for example, had to build an organization with contributing members, a hierarchy, local branches, a board, and so on. All of that would have been difficult and expensive even under less hostile conditions. It was much easier to build environmental-advocacy organizations in the 1970s, both because of improved technologies such as mass mail and because prospective members had a lot of disposable income. Nowadays, one can build and mobilize a #MeToo movement on Twitter, and millions of dollars are available to promote just about any cause.

The impact of disintermediation on the Court is hard to overestimate. The swift, massive mobilization that accompanied Justice Kavanaugh's nomination is only the most obvious and recent example. Every Supreme Court case of note is now accompanied by a flood of mass-produced amicus briefs, and oral arguments and rulings produce a torrent of instant internet spin and agitation. In the early 1990s, Judge Laurence Silberman of the D.C. Circuit fretted that justices and appellate judges were suffering from a "Greenhouse effect," meaning an undue regard for the opinions of Linda Greenhouse, then Supreme Court correspondent for the New York Times. That world of gatekeepers and intermediaries is no more. Twitter rules.

A fourth defining feature of our politics is the ineluctable rise of executive government and the corresponding decline of Congress. When Robert Dahl wrote about the Court's capacity (or incapacity) to resist dominant political coalitions, he by and large meant coalitions that dominate the Congress. That perspective made sense when Dahl was writing in the 1950s and for three decades or so thereafter. For example, a wonderful book written in 1994 by Boston College professor R. Shep Melnick, Between the Lines, examined the Court's welfare-rights decisions — a very important policy issue in the 1960s and 1970s — and showed that the Court was powerfully constrained by congressional committees and coalitions. The food-stamp program, for example, depended on an uneasy coalition between urban liberals and farm-state conservatives. When Supreme Court decisions threatened to break that coalition, Congress hit back and amended the statutes to overrule the Court's decisions. The justices learned the limits of their power.

That world, too, is dead and gone. The institutional dialogue has come to an end because there is no Congress to dialogue with. Statutory overrides, quite common when Melnick wrote, have disappeared. The Supreme Court knows this, and it has decided accordingly. The most striking example is the Court's 2015 decision in King v. Burwell, which upheld important parts of the Affordable Care Act on the remarkable theory that a health-care exchange established by the secretary of Health and Human Services is nonetheless a health-care exchange established by a state. The Court took it upon itself to fix the statute, convinced that Congress would be incapable of doing so. 

The fifth, somewhat more contingent feature of our institutional climate is the present makeup of the Court and the justices' expected longevity. The Court's conservative majority is likely to last for many years in the polarized, divided, mobilized, and executive-dominated landscape just described. Nothing comparable exists in the standard political-science playbook. Unlike the Court that faced the New Deal, the current Court was not appointed by a dominant coalition and does not find itself confronting an opposing, emergent coalition — and, in short order, a choice between surrender or death on the ramparts. And unlike the New Deal Court, the current Court has not been appointed to play out a dominant coalition's program; there is no such coalition.

The multifaceted political context in which the legitimacy debate is now playing out undoubtedly poses problems for the Court. The most acute danger is that the Court's rulings will be respected only to the extent that they coincide with one or the other party's ideological views. And that's not legitimacy. 

RESTORING LEGITIMACY

What, if anything, might the Court be able to do about this? Harvard law professor Richard Fallon has addressed the question in a timely, thoughtful book on Law and Legitimacy in the Supreme Court. He notes that the Court will and must pay heed to what he calls considerations of "sociological legitimacy" (meaning public acceptance of the Court's decisions) — not in every case, obviously, but in most rulings over time. "Some degree of sociological legitimacy," he writes, "is crucial to the health, if not the existence, of a legal system." But he does not share the "cynical realist" view that the justices are simply politicians in robes. Generally, he writes, the justices have a commitment to differing but entirely legitimate jurisprudential theories, even if those commitments are a bit "fainthearted" at times.

After noting the dismaying decline of the Court's sociological legitimacy, Fallon suggests that the Court itself cannot do much about it, but that it can do something. He urges more judicial candor about the justices' theoretical commitments. Foremost, though, he makes a case for greater judicial restraint. This means more judicial deference to legislative judgments, except in "legally hard cases that exhibit genuine moral urgency." Because those are relatively few, "there is ample opportunity for the Justices to lower the average ideological temperature of Supreme Court litigation" and "to move the Court from a role at the center of a number of political debates to a role slightly closer to the margins."

Fallon's call for jurisprudential candor is sensible, though perhaps a bit behind the curve. (Practically all the sitting justices lead with their jurisprudential chins and strive for consistency.) His advocacy of greater judicial restraint, however, misses the mark in two ways, and very nearly gets it backward. First, Fallon's exception for cases that revolve around individual rights exempts some of the most significant and controversial rulings in recent years. And second, his theory of restraint has nothing to say about questions of constitutional structure and executive power, which promise to prove central in coming years.

Fallon's "moral urgency" exception explicitly serves to accommodate Roe v. Wade, U.S. v. Windsor, and Obergefell v. Hodges, the Court's decidedly unrestrained decisions that legalized abortion and same-sex marriage. (He endorses those decisions out of conviction. Were he to voice doubts, he might need a bodyguard at Harvard.) It is precisely those cases of "genuine moral urgency," however, that have most undermined the Court's legitimacy and made it a partisan in a raging culture war.

In a free society composed of reasonably tolerant, easygoing people, the question of whether a florist must sell flowers to a same-sex couple for their wedding should not be a matter of "genuine moral urgency." It should be a matter of the American faith: I'm okay, and you're okay, and we all have to find a way to live with one another despite our differences. If one florist declines to help a same-sex couple due to religious convictions, surely another florist across the street will welcome them and give them a discount. How did this become the stuff of creedal passions and moral urgency? The Supreme Court itself is mostly responsible. The hallmark of rights jurisprudence over the past half century has been the expansion of rights, not just against the government but of rights we hold against one another — the demand for flowers from someone who doesn't want to sell them, and the equally insistent demand that there must be a religious or free-speech exemption from that demand, on the theory that florists aren't just merchants but artists. The Court has irreversibly transformed rights jurisprudence into a zero-sum game. Having made that tragic mistake, the Court should heed Fallon's advice to tread lightly precisely in the cases where he wants to make a "moral urgency" exception. Moral urgency is felt on all sides, and the Court is superintending compromises among the constituencies it has inflamed. Maybe the best it can do by way of preserving sociological legitimacy is to not upset too many people any further.

Restraint on the rights front might in turn give the Court some leeway to get a grip on the central, structural problem of American politics (and for that matter, republican government across the world): the dominance of executive power. Prominent scholars, including Chicago law professor Eric Posner and Harvard's Adrian Vermeule, have argued that we live in a "Schmittian" state whose executive cannot be checked by legislatures or courts. That, they say, is all to the good, and it is nothing to worry about unless you suffer from "tyrannophobia." But it is not paranoid to entertain grave concerns about the steady accretion of executive power in the past four decades. Several Supreme Court justices have forcefully expressed those concerns.

"We can't wait." "I alone can fix it." Those slogans encapsulate constitutional rot. Our system of checks and balances isn't supposed to work that way; we're not meant to have an unbound executive. The ultimate form of rot is what the founders called "corruption." They were worried not so much about low-level self-dealing, but the wholesale mobilization of the executive apparatus for partisan gain and exploitation.

We aren't there yet, but the signs are unmistakable. For example, major energy and environmental programs under both the Obama and Trump administrations were demonstrably calculated to help industries and states favored by the administration then in power. That's politics, one might say. But it is unilateral politics outside the ordinary checks and balances, operating at the absolute outer boundaries of statutory and constitutional law. And the potential for further abuse certainly exists. For instance, when President Trump "ordered" major American companies to cease operations in China, and pundits left and right surmised that the president had gone round the bend, William Galston — a lifelong Democrat — noted in a Wall Street Journal op-ed that, to his own great surprise and dismay, the president quite probably does have that power under existing law.

The inexorable rise of executive power in today's highly polarized, disintermediated political environment presents the Court with a difficult dilemma. On the one hand, there is the risk of judicial excess and overreach. Federal courts might come to view themselves as the last bastion of republican government — the last institutional home of the "Resistance," as it were. Partisan dynamics on both sides fuel that tendency. Recent examples include efforts by organized litigants on both the right and left to systematically select friendly federal district courts, the better to obtain blanket injunctions against the federal government in matters involving the Affordable Care Act, immigration law, and environmental statutes. The Supreme Court is then often compelled to rein in wayward lower courts and walk back some of their more exotic legal theories. 

On the other hand, there is also the opposite risk of judicial under-reach. In a few areas in recent decades, the Supreme Court has sought to repudiate ambitious claims of executive authority. For example, the Court rejected such claims in successive cases involving the detention of enemy combatants and insisted on some congressional authority for the George W. Bush administration's policies. But on the whole, the Court has given the executive wide latitude to re-engineer and effectively re-write entire federal statutes, from the Clean Air Act and the Affordable Care Act to more obscure laws, such as the Federal Power Act.

As out-of-power constituencies have come to view the judiciary as the last best institutional forum to resist the executive, the Court's dilemma has become more parlous. The agitation that has accompanied litigation over the Affordable Care Act or immigration policy suggests that decisions involving the executive's authority may eventually come to be perceived as either an abject surrender to partisan power or something close to a judicial coup d'état. That danger is especially grave in cases, now coming at a rapid clip, that involve this president's personal affairs and official conduct, as well as his lawyers' ambitious claims of presidential immunity and authority. Both President Trump and his foes have staked out aggressive litigation positions, in relatively uncharted legal territory, on separation-of-powers questions that in calmer times were left to negotiation and compromise. Now, the justices' hands are forced: They are either on one team or the other.

Perhaps, though, it is still possible to tell a different, more hopeful story — a story of a Supreme Court that navigates the executive-power minefield, countermands constitutional rot, and, in the process, restores a bit of legitimacy to and confidence in our institutions. The present political environment and the nature of separation-of-powers cases give cause for such hope.

A COURT FOR OUR TIME

To start thinking more concretely about how the Court might reverse the decline in its legitimacy, recall the features of our political climate mentioned above. Two of them, intense partisan polarization and closely divided elections for the foreseeable future, combine fatefully to shorten politicians' time horizons: Let's do something bad to the other team before they do it to us, the thinking goes. But a third feature mentioned, the expected longevity of a moderate-conservative Supreme Court majority, cuts in the opposite direction. Justices who are bound to serve for decades, under the conditions just described, cannot have a short time horizon. They are compelled to adopt a long-term, politically neutral perspective: How will the rule or doctrine that I announce or endorse today play out under a different administration? Finally, recall a fourth and crucial feature of our current political environment: the steady growth of executive power. The parties have long stopped fighting over the size of government; they just fight over its control, and the next occupant of the White House will almost surely double down on the Obama and Trump administrations' executive-power claims. (Several presidential aspirants have proclaimed such intentions proudly and openly.)

Put all of this together, and the Court seems quite well-positioned to regain public confidence by resisting executive aggrandizement. At the end of the day, that will require constitutionally grounded, politically neutral, rot-stemming judicial rules and doctrines. The Court currently lacks such doctrines, and their restoration is a long-term project requiring a great deal of judicial good will and serious intellectual engagement. Piecemeal advances are entirely possible, however, even for a somewhat fractured Court, and even in a poisonous political environment.

The Court's 2014 decision in NLRB v. Noel Canning, a case involving the president's constitutional power "to fill up all Vacancies that may happen during the Recess of the Senate," provides an example. President Obama had filled certain high-level appointments while the Senate was — under its own rules — in session, not in recess, on the astounding theory that the determination of whether the Senate is in recess is the president's prerogative. The Court unanimously rejected that maneuver. To be sure, the justices disagreed about the reasons. Justice Stephen Breyer's majority opinion focused heavily on constitutional rot: The branches had a stable (though textually ungrounded) small-c constitutional working arrangement on recess appointments until President Obama unilaterally broke it. Justice Antonin Scalia argued that the constitutional text conclusively answered the question. Both justices articulated their jurisprudential convictions with sufficient force to earn this case a place in many constitutional-law textbooks. Disagreements of that sort are a model: sincerely argued jurisprudential convictions, but also agreement on the outcome of restoring small-c constitutional order.

Long-term judicial tenure, coupled with polarization and uncertain electoral outcomes, also opens the prospect of judicial decisions and votes "against type," and the possibility of odd judicial coalitions. Both occurrences should help to restore a sense that the justices are actually judges, not just another cast of partisan combatants. While this has not happened very often to date, unusual judicial coalitions did come about in some of the detainee cases after 9/11. (One of them features a rare Scalia-Stevens dissent.) They came about, for good or ill, in the Affordable Care Act cases. And they could come about in future cases — most likely cases in which liberal justices feel compelled to qualify their enthusiasm for "presidential administration" and administrative government, or perhaps decisions in which conservative justices reject a Republican president's extra-legal undertakings.

Such cases need not involve any great constitutional claims. In fact, with the admittedly significant and dismaying exception of the executive-immunity cases mentioned earlier, most will revolve around low-visibility administrative-law issues. Just this past term, for example, the Court decided whether administrative agencies should be granted judicial deference when they interpret their own regulations. (The seemingly technical issue is another constitutional-rot question: Judicial deference greatly enhances agencies' ability to expand their authority and to insulate their enterprises against judicial scrutiny.) At first glance, this boring case produced drearily predictable, ideologically driven voting. Justice Elena Kagan, writing for the four liberal justices, opted for preserving the courts' so-called Auer deference; Chief Justice Roberts separately concurred (for the most part); and Justice Gorsuch, writing for the four remaining conservative justices, argued that Auer deference should be put out of its misery. Many legal scholars, however, have noted that the decision, Kisor v. Wilkie, effectively and unanimously ended Auer deference. Justice Kagan's opinion sharply limits the circumstances under which agencies may obtain such deference, to the point where it is not worth the bother. She burned down the Auer village in order to save it. On all accounts, that is progress.

Similarly arcane matters are or soon will be on the Supreme Court's docket. Can the president's tweets be used to invalidate an otherwise-lawful executive order, on the theory that the averred legal reasons were pre-textual? (This question has been asked and answered twice now by the Court, but not conclusively.) When a statute imposes civil and criminal penalties for misbehavior — and there are dozens of those statutes — should courts defer to the executive's determination of what constitutes a violation, as our pro-executive administrative-law canons teach, or should we follow the ancient common-law rule of lenity, which cuts in favor of the defendant? Do we think that one administration's immigration policy, announced as a mere enforcement matter under a very broadly worded statute, can then be revoked by the next administration in the same way, by executive order — or does that take something more? Can your private rights be adjudicated by some executive officer, or does that require an independent court?

Those questions all involve the principal source of constitutional rot — the accretion of executive power. Some of the forthcoming decisions will sustain assertions of executive power; others will reject it. Some, perhaps most, will be accompanied by a great deal of partisan agitation. But in the end most turn on fairly esoteric legal questions. That gives the Court an opportunity to lower the temperature, to transcend partisan divisions, and to gradually develop a jurisprudence that is calculated to curtail executive excess and constitutional rot. As Keith Whittington observes, the Court can make a difference on the margins, in cases that aren't for all the marbles and could cause political coalitions to fracture. Under present conditions, the Court may well be able to make a directional difference on perhaps the central question of American politics, provided it knows where it wants to go.

Does this Court know? It just might: At least seven of the nine justices have written thoughtfully about executive government. And the Court's decisions provide reasons for hope. In numerous separation-of-powers cases, the justices have explained their views and then disagreed not along partisan lines, but for candidly stated legal reasons. B&B Hardware v. Hargis, a 2015 trademark case, featured a sharp disagreement between justices Samuel Alito and Clarence Thomas (joined by Justice Scalia) as to when, if ever, administrative agencies may revise the rulings of an Article III court. Oil States Energy Services v. Green's Energy Group, a related 2018 patent case, brought an even sharper disagreement between justices Thomas and Gorsuch. City of Arlington v. FCC, a 2013 case concerning judicial deference vis-à-vis an agency's legal determinations, produced a near-legendary disagreement between Justice Scalia and Chief Justice Roberts. The list of similarly abstruse cases with strenuous disagreements that cut across perceived lines of political allegiance could easily be extended, and more of the same would be better yet. In a recent address, Chief Justice Roberts proffered this set of cases in defense of, and as evidence for, the Court's legitimacy as a court: Justices are judges, not partisans.

It is possible that judicial disagreements over separation-of-powers questions signal judicial confusion and disarray, providing yet further reasons to doubt the Court's ability to confront an overbearing executive. It is undoubtedly true that the Court lacks coherent anti-rot doctrines. Reading the cases, however, it is equally true that the justices understand this. The general run of cases is best understood as a work in progress — as the Court's collective effort to think through, and develop, separation-of-powers doctrines that will work for the pressing and enduring problems of institutional politics as they now present themselves. The Court's legitimacy may come to hang on the success of that enterprise.

AN EXECUTIVE UNDER THE LAW 

As noted above, the standard political-science playbook does not contemplate the Court's current predicament. But there is an instructive case: Youngstown Sheet & Tube Company v. Sawyer, the famous "steel-seizure case" in 1952 where the Court, by a 6-3 vote, blocked President Harry Truman's order to seize private steel mills during the Korean War. The differences between our political culture then and now are significant to be sure. Youngstown was decided in and for a different, more confident, and in many ways a better country: a country of moderate parties rather than polarized tribes, and better yet, without blogs or Twitter. It was a different Court too, stacked with die-hard New Dealers. And Youngstown was not some boring administrative-law case, but a dramatic constitutional confrontation. Still, the parallels are worth noting.

Then as now, the justices were confronting a constitutional problem for which our Madisonian understanding provides no answer: legislative abdication. (In 1952, Congress had neither authorized nor prohibited Truman's move to seize steel mills, and it dawdled even as the president urged action.) Then as now, the central separation-of-powers struggle was not between Congress and the executive, or between Congress and the Court, but between the executive and the Court. Then as now, the Court's legitimacy hung in the balance — and the justices lacked a coherent theory to re-limit executive power.

After two decades of New Deal and wartime presidential government, the Court featured a cast of justices who had variously propounded, defended, or greenlighted bold executive exertions of power. Where, then, would a theory to restrain the executive come from? With the Youngstown decision, the justices pulled out all the constitutional stops they could think of. The case produced six separate majority opinions, none of them terribly compelling as a legal matter. The ruling was a jurisprudential Apollo 13. The operation could have gone badly awry, but the justices brought the baby down with duct tape and band-aids because they rightly thought they had to do so — confronted, as they were, with the prospect of a permanent emergency government dominated by the executive. "[M]en have discovered no technique for long preserving free government except that the Executive be under the law," wrote Justice Robert Jackson near the end of his opinion. "Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up."

That is not an exhaustive constitutional theory — not even close. But in thinking about the Court's legitimacy here and now, it is a fine place to start.

Michael S. Greve is a professor at Antonin Scalia Law School.


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