The Supreme Court Is Legal. But Is It Still Legitimate?

Most arguments about the Supreme Court start in the wrong place.

They start with abortion. Guns. Donald Trump. Campaign finance. Affirmative action. Religion. Presidential power.

Then Americans divide into predictable camps depending on whether they liked the Court’s latest decision.

But there is a more fundamental question.

Not whether the Supreme Court has the legal authority to issue its rulings.

It does.

The harder question is whether the Court is using that enormous authority in a way that continues to justify the institutional legitimacy Americans have historically given it.

Those are two very different things.

A Court can possess constitutional power and still damage the public confidence that allows that power to function.

That distinction is at the heart of Supremely Rogue.

Legal Authority Is the Easy Part

The Constitution created the federal judiciary in Article III.

But something Americans now take for granted is not actually written explicitly into the Constitution.

That power was firmly established in 1803, in Marbury v. Madison.

Chief Justice John Marshall reasoned that because the Constitution is the supreme law of the land, courts cannot enforce an ordinary statute that conflicts with it.

The principle became known as judicial review.

It gave the judiciary extraordinary power.

Congress could pass a law. A president could sign it. The voters could elect both. And the Supreme Court could still say: No. The Constitution does not permit this.

That made the Court something far more consequential than simply a tribunal resolving disputes between individuals. It made the judiciary a genuine co-equal branch of government.

But with that power came an unavoidable responsibility. If unelected judges with lifetime appointments can invalidate the work of elected officials, Americans must have reason to believe those judges are applying law rather than merely substituting their own political preferences for those of the voters.

That is where legitimacy begins.

Authority Comes From the Constitution. Legitimacy Comes From Trust.

Suppose five justices decide a case 5–4. Legally, that is enough. Their decision is just as binding as a 9–0 decision.

But imagine that Americans increasingly come to believe they can predict that 5–4 vote simply by knowing which president appointed each justice.

Imagine constitutional law changing substantially whenever the ideological composition of the Court changes.

Imagine precedents surviving for decades until enough new justices arrive who disagreed with them.

Imagine important rules being announced through emergency orders issued before the normal appellate process has finished.

At some point, the public begins asking a different question: are we watching judges interpret the law, or are we watching nine exceptionally powerful people impose competing philosophies about what the law ought to be?

That distinction matters enormously. Congress is supposed to be political. The president is supposed to pursue an agenda. Supreme Court justices claim a different kind of authority. They claim to decide according to law.

That Is Why Precedent Matters So Much

One of the most important restraints on judicial power is a concept with a Latin name that sounds more complicated than it is: stare decisis. It means courts generally follow previously decided cases. We usually call that precedent.

Precedent is not simply respect for old judges. It is one of the mechanisms that makes judicial decision-making different from political decision-making. If the meaning of the Constitution starts over every time the membership of the Supreme Court changes, there is very little restraint on the justices except their own beliefs.

A business needs to know what the law will be next year. A citizen needs to know what constitutional rights exist. A police department needs to know what searches are legal. Congress needs to know what legislation is permissible. Lower courts need to know what rules to apply. Americans need to be able to organize their lives around rules that do not disappear because one justice retired and another took the seat.

The Supreme Court itself has repeatedly identified stability, predictability, consistency and reliance as reasons precedent matters.

That does not mean precedent can never be reconsidered. But there is an enormous difference between saying precedent is not absolute and saying precedent is merely an obstacle five justices may remove whenever they believe their interpretation is better.

If the second view prevails, constitutional law begins to depend heavily on who happens to occupy nine seats at a particular moment in history. And that takes us directly to the modern Court.

For Years, the Second Amendment Meant Something Different in Most Federal Courts

Consider the Second Amendment.

Today many Americans assume that the Constitution has always been understood to guarantee an individual constitutional right to possess a firearm for self-defense unrelated to militia service. The legal history is considerably more complicated.

For much of the twentieth century, the Supreme Court gave relatively little guidance about the Amendment’s precise scope. Courts and scholars debated whether it protected an individual right or a right connected more directly to organized militia service.

By the beginning of the twenty-first century, most federal courts of appeals that had addressed the issue interpreted the Second Amendment as protecting a right tied to military or militia use. That history is documented in Congress’s own Constitution Annotated.

The majority believed its reading followed the Constitution’s text and founding-era history. The four dissenters sharply disagreed.

What matters for our purposes is not whether someone supports gun ownership. It is what Heller demonstrates about judicial power.

Five justices were able to take an enormously important constitutional provision whose meaning had been understood differently by most federal appellate courts and establish a new controlling constitutional rule. Once that happened, elected legislatures throughout the country had to operate within the boundaries those five justices had announced.

That is extraordinary power. And it makes the methodology by which justices reach such conclusions extraordinarily important.

Then the Court Rewrote Campaign-Finance Law

Two years later came another enormous change.

In Citizens United v. Federal Election Commission in 2010, a 5–4 Court held that corporations and unions could not be prohibited from making independent political expenditures. To reach that result, the Court expressly rejected its 1990 decision in Austin v. Michigan Chamber of Commerce and overturned part of its much more recent 2003 decision in McConnell v. FEC.

Again, supporters had a constitutional argument. They maintained that political speech does not lose First Amendment protection because the speaker happens to be a corporation. Critics argued that the decision fundamentally altered campaign finance and magnified the political influence of enormous pools of private money.

But Citizens United was not the end of the transformation.

That last case is especially revealing. In 2001, the Supreme Court had upheld limits on coordinated spending between political parties and their candidates. Twenty-five years later, the current Court concluded that the precedent could no longer stand. By a 6–3 vote, decided June 30, 2026, it struck down the limits and expressly overruled the earlier decision to the extent it remained viable. The majority said later First Amendment cases had undermined the old precedent. The three dissenting justices disagreed.

This is not simply one isolated decision. It is a line of cases through which the Court has steadily rewritten the constitutional rules governing money and political campaigns.

Whether someone believes those decisions protect free speech or weaken democratic safeguards, the institutional question remains: how much constitutional policy should change because the philosophy of the justices changed?

Presidential Power Has Changed Too

The same issue appears in an even more consequential area: the power of the president.

For most Americans, one of the most basic principles of American government is that no person is above the law.

Then, in Trump v. United States in 2024, the Supreme Court confronted a question it had never answered in this form: can a former president be criminally prosecuted for conduct undertaken while president?

The majority said protections for presidential authority were necessary to preserve an energetic and independent executive branch. The dissenters believed the majority had created a sweeping form of immunity not supported by the Constitution’s text or history.

Whatever one’s view of Donald Trump, the case is larger than Donald Trump. The decision applies to every future president. The Court did not merely decide whether one defendant could be prosecuted. It created constitutional rules governing presidential criminal immunity that will shape the presidency long after Trump leaves public life.

That is precisely the kind of decision for which institutional legitimacy matters most.

Something Else Has Changed: How the Court Makes Major Decisions

Traditionally, when Americans imagine a major Supreme Court case, they imagine a deliberate process. A dispute begins in a trial court. The parties develop evidence. A court issues a decision. An appellate court reviews it. Lawyers submit extensive briefs. Outside organizations may file briefs. The Supreme Court decides whether to accept the case. The justices hear oral argument. Months later, they issue opinions explaining their reasoning.

Increasingly, however, important governmental disputes are reaching the justices through what is usually called the emergency docket.

Emergency procedures are necessary. Courts sometimes must act quickly. But their use has expanded into disputes involving extremely consequential exercises of presidential and governmental power. Emergency cases generally involve compressed briefing, often no oral argument, and sometimes brief or unsigned orders.

According to constitutional law scholar Erwin Chemerinsky’s review of SCOTUSblog’s docket records, the Court issued at least 24 emergency-docket rulings involving Trump administration actions in 2025; the administration prevailed in 20 and lost four.

The concern is not simply who won. The concern is the process.

A Supreme Court exercising extraordinary constitutional power traditionally explains itself. The country can read the majority. It can read the dissent. Lawyers can understand the rule. Lower courts know how to apply it. Congress can determine whether legislation is appropriate. The public can judge the reasoning.

When major governmental actions are allowed or blocked through abbreviated emergency proceedings, much of that deliberative process disappears.

Standing May Sound Technical. It Determines Whether Anyone Gets Through the Courthouse Door.

Another development receiving far less public attention involves standing.

Standing determines who is legally entitled to bring a lawsuit in federal court. It sounds like dry procedural law. It isn’t.

Before a judge can decide whether the government acted illegally, somebody must have the legal right to ask the judge the question. If nobody has standing, the government’s action may escape judicial review—not because it was found lawful, but because the courthouse door never opened.

In April 2025, for example, the Supreme Court granted emergency relief in Office of Personnel Management v. American Federation of Government Employees. The Court said allegations from nine nonprofit organizations were insufficient at that stage to establish standing and stayed the lower court’s injunction. Justice Jackson objected to resolving the standing issue through emergency proceedings while the issue remained before the lower courts.

Then came Trump v. CASA in June 2025. The underlying cases challenged President Trump’s executive order attempting to restrict birthright citizenship. But the Supreme Court did not initially decide whether the executive order itself was constitutional. Instead, the 6–3 Court limited the power of federal judges to issue what are commonly called nationwide or universal injunctions. The Court held that federal courts generally could not give relief broader than necessary to protect the particular plaintiffs before them.

That sounds procedural. Its consequences are not.

If a president issues an order affecting millions of Americans and one plaintiff proves that the order is unlawful, a court’s ability to stop its application to everyone may now be substantially more limited. Other affected people may need their own lawsuits. Organizations may encounter standing barriers. Class actions may become more important. Litigation may proceed in multiple courts simultaneously.

The Court later rejected Trump’s underlying birthright-citizenship position in 2026. But the limitation it placed on universal injunctions remains important well beyond that controversy.

This is where procedure becomes power. A constitutional right means less if the rules governing who can sue, when they can sue, and what relief a judge can provide make that right difficult to enforce.

At some point, separation of powers becomes difficult to enforce if neither ordinary citizens, organizations, states nor lower courts have effective tools to test executive authority.

This Is Different From Ordinary Conservative Judging

None of this should be reduced to: conservatives won control of the Court, and liberals don’t like the decisions.

That would be too easy. And it would miss the important issue.

Conservative justices can reach conservative results without damaging the legitimacy of the Court. Liberal justices can reach liberal results while damaging it. The question is not ideology alone. The question is constraint.

Does precedent restrain the justices? Does institutional history restrain them? Do principles announced in one case constrain the result in the next? Does the Court distinguish between what judges personally believe the Constitution should mean and what decades of law have established that it means? Does the Court use its power cautiously when another branch of government could resolve the issue? Does it explain enormous changes in constitutional law through full opinions and the normal judicial process?

And perhaps most importantly:

That is one of the most useful tests of judicial legitimacy.

The Court Has Shown It Can Work Differently

The modern Supreme Court has not always functioned as two predictable ideological camps.

Even during the Roberts era, the Court regularly demonstrated a significant capacity for consensus. From roughly 2010 through 2016, unanimous decisions often made up half or more of the Court’s decided cases. During the 2013 term, 66 percent of the Court’s decisions were unanimous, according to SCOTUSblog’s statistical analysis of that term.

In the 2024 term, that figure had fallen to about 42 percent.

Unanimity alone does not prove legitimacy. Justices can unanimously be wrong. And disagreement can be principled. But consensus reveals something important about institutional culture.

For years, justices appointed by Republican and Democratic presidents regularly formed unexpected coalitions. A conservative justice might write an opinion joined by liberal colleagues. A liberal justice might join a conservative majority. Anthony Kennedy often occupied the ideological center. Sandra Day O’Connor had done so before him. Chief Justice Roberts sometimes assembled broad majorities by deciding questions narrowly enough that justices with different philosophies could agree.

That approach carries a cost: narrower decisions often resolve less. But it also recognizes something important about an institution whose decisions apply to more than 300 million people.

Judicial restraint is not weakness. Sometimes it is what preserves judicial authority.

Then the Court’s Composition Changed

Justice Antonin Scalia died in February 2016. President Barack Obama nominated Merrick Garland. The Republican-controlled Senate declined to consider the nomination, arguing that voters should have a voice through the coming presidential election.

Donald Trump won that election and appointed Neil Gorsuch. Trump later appointed Brett Kavanaugh after Justice Kennedy retired.

Then Justice Ruth Bader Ginsburg died on September 18, 2020, less than seven weeks before the presidential election. This time, the Republican-controlled Senate proceeded with a nomination. Amy Coney Barrett was confirmed on October 26, 2020—eight days before Election Day.

The Senate had the constitutional authority to do both things.

That is the legal-authority question.

The legitimacy question is different. When the political process surrounding the composition of the Supreme Court appears to operate under one principle when one party controls the presidency and another principle when circumstances change, Americans may understandably conclude that Supreme Court seats have become political prizes. And when changes in those seats are followed relatively quickly by major changes in constitutional law, the perception becomes harder to dismiss.

Ethics Cannot Be Separated From Legitimacy

A Supreme Court justice cannot be appealed to a higher American court. There is no superior judicial body reviewing whether a justice should have participated in a case. That makes ethical credibility particularly important.

Recent years have brought substantial reporting about undisclosed gifts, luxury travel, financial relationships and recusals involving members of the Court. Some justices have disputed whether particular disclosures were legally required and have defended their conduct. Critics and ethics experts have disagreed.

Again: legal? That is one question. Confidence-building? That is another.

A Pattern Matters More Than Any Single Case

No one decision establishes that the Supreme Court lacks legitimacy. Not Heller. Not Citizens United. Not Dobbs. Not Trump v. United States. Not the campaign-finance cases. Not the standing cases. Not the emergency docket. Not the confirmation battles. Not the ethics controversies.

The concern comes from their accumulation.

• → A Court increasingly divided along recognizable ideological lines
• → A durable six-justice conservative majority
• → Major constitutional doctrines changing
• → Longstanding precedents reconsidered or discarded
• → Previously accepted campaign-finance restrictions invalidated one after another
• → A dramatically expanded conception of presidential immunity
• → Emergency orders deciding consequential governmental disputes before ordinary litigation is complete
• → Standing doctrines limiting who can challenge government actions
• → Restrictions on the ability of lower courts to provide nationwide relief
• → Ethics controversies without truly independent enforcement
• → A confirmation process viewed increasingly as partisan combat
• → Falling public confidence in the institution

Any one of those might be explained. Taken together, they raise a much more difficult question.

The Supreme Court Does Not Have to Be Popular

This point is critical.

A legitimate Supreme Court does not simply produce decisions the majority of Americans want. If constitutional rights depended on opinion polls, there would be little purpose in having an independent judiciary.

Judges sometimes must protect unpopular people. They sometimes must invalidate popular laws. They sometimes must tell presidents no. They sometimes must tell Congress no.

That independence is one of the great strengths of American constitutional government. But judicial independence cannot mean judicial power without restraint.

The Supreme Court asks Americans to accept something remarkable: nine unelected people with lifetime appointments can issue decisions that presidents, Congress, states and hundreds of millions of citizens must obey.

The system works because Americans traditionally accept that those nine people are not simply another legislature. They are judges.

That distinction depends upon trust.

Trust that precedent means something. Trust that rules will be applied consistently. Trust that judges are not deciding cases based upon who the parties are. Trust that constitutional principles will survive changes in political power. Trust that enormous changes in the law will require enormous justification. Trust that judges will follow ethical standards worthy of the power entrusted to them. And trust that the Court knows there is a difference between possessing power and exercising every bit of it.

That is institutional legitimacy.

The Question Supremely Rogue Will Keep Asking

Supremely Rogue is not built around the proposition that every conservative Supreme Court decision is wrong. Nor should every liberal decision be presumed correct. That would simply substitute one political team for another.

The more important task is to examine how the Court uses power.

When it honors precedent. When it abandons precedent. When its stated principles remain consistent. When they change. When the Court acts narrowly. When it reaches beyond what a case requires. When justices build consensus. When six members move together predictably. When decisions are thoroughly explained. When consequential government actions are resolved through abbreviated emergency procedures. When ethical questions arise. And when the rules governing access to the courts themselves make it harder for citizens to challenge the government.

The Supreme Court remains the Supreme Court. Its orders are binding. Its constitutional authority is real.

But those facts answer only the legal question. They do not answer the more important question for the future of the institution:

Sources

• U.S. Constitution, Article III
• Marbury v. Madison, 5 U.S. 137 (1803)
• Congress.gov, Constitution Annotated — Judicial Review
• Congress.gov, Constitution Annotated — Second Amendment jurisprudence
• District of Columbia v. Heller, 554 U.S. 570 (2008)
• Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
• McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014)
• Federal Election Commission v. Ted Cruz for Senate, 596 U.S. 289 (2022)
• Trump v. United States, 603 U.S. ___ (2024)
• Office of Personnel Management v. American Federation of Government Employees, emergency order, April 8, 2025
• Trump v. CASA, Inc., 606 U.S. ___ (2025)
• National Republican Senatorial Committee v. Federal Election Commission, 609 U.S. ___ (2026) — full opinion
• Supreme Court Code of Conduct for Justices, adopted November 13, 2023
• SCOTUSblog, “A Few Notes on Unanimity” (July 2014) — source for the 2013-term unanimity figure
• Erwin Chemerinsky, “Looking back at 2025: the Supreme Court and the Trump administration,” SCOTUSblog (Jan. 5, 2026) — source for the emergency-docket count