Journalists and professors have formed a ululating chorus mourning the loss of the Supreme Court’s legitimacy. Their laments often include suggestions about how that legitimacy might be regained. However, they conspicuously neglect to mention that the greatest threat to the Court comes not from within but from the baseless assaults that many of their colleagues have launched. The cacophony of criticism betrays more than simple ideological dissatisfaction—it reflects a deeper frustration with the Courts role as a reasoning institution, but one that dares to defy the intelligentsias directions.

　　On the surface, it may seem that the leftward lean of most professors and journalists is enough to explain the ferocity of their attacks—the current Supreme Court does not reliably produce the decisions they would prefer. But their discontent runs deeper. The Court is unique among the branches of government in that it transparently reasons through its decisions. While the intelligentsia may dismiss the other branches as driven by raw political passions and base interests, they cannot easily accept that the Court—an institution that, like themselves, offers reasoned explanations and arguments—might represent something besides what they consider the forces of light. The fact that the Court’s justices attended the same elite schools as many journalists and professors only deepens the anger when it delivers outcomes they consistently oppose. It is not simply the decisions that enrage them but the effrontery of a Court whose analysis undermines their sense that history is ineluctably bending to their worldview.

　　To understand the weakness of these left-wing critiques of the Court’s legitimacy, it is essential to dissect the arguments one by one. These critiques are not rooted in principle but are polemical attempts to persuade members of the public, who understandably often lack detailed knowledge of the Court, that something is fundamentally wrong, when the criticisms boil down to mere disagreements with the Courts decisions.

　　First, consider the argument that the Court has lost legitimacy because it is unpopular. Critics frequently point to public opinion polls, noting the Supreme Court’s low approval rating, standing this year at 47 percent. Some progressives have suggested that a Court’s legitimacy should be measured by its popularity. But the role of the judiciary is to interpret the law, not to chase public opinion. Judicial review, by its very nature, demands that the Court give primacy to its interpretation of the Constitution, even over laws that are popular enough to pass through state legislatures or Congress. The Constitution’s very design was to provide a deliberative framework that protects against the whims of transient majorities, what Justice David Brewer aptly called the protection of Peter sober against Peter drunk.

　　Moreover, in fact, the Court is not more unpopular than it has been in recent times. Over the past twenty-five years, its approval ratings have fluctuated between 40 and 60 percent. There is no reason to believe that its current dip—driven by the decision in Dobbs—will not be temporary, just as the Court rebounded from the widespread discontent following Bush v. Gore. At 47 percent approval, the Court is still more popular than the sitting president, presidential candidates, and, by a wide margin, Congress. Even if one thought that popularity was somehow the lodestar of legitimacy, it is relative popularity that would matter most. So long as the Court remains more trusted than the political branches, it will continue to possess the diffuse support necessary to ensure that its rulings are not defied by those same branches.

　　Next, consider the complaint that the Court’s “radical” methodology, originalism, places it outside the bounds of legitimate constitutional interpretation. But this critique is unfounded. Originalism, as a method of interpretation, has been a fixture in constitutional law since the Republic’s founding. Indeed, as Howard Gillman, no conservative himself, has demonstrated, originalism was the common ground in constitutional disputes throughout the entire nineteenth century. Even today, William Baude has argued that almost all Supreme Court decisions at least gesture toward original meaning as the foundation of their reasoning. While Baudes assertion that originalism is “our law” may be a touch exuberant, it underscores that originalism has always remained a legitimate, if in modern times contested, method of grounding constitutional interpretation. Given this deep historical pedigree, it is hard to see how originalism can be dismissed as an illegitimate constitutional approach.

　　Another line of criticism focuses on the fact that the Roberts Court has overruled precedents. Yet, overturning precedent is a longstanding feature of Supreme Court jurisprudence. The Court has been revisiting and revising its past decisions for over a century. In fact, the Roberts Court has overturned precedents at a slower rate than either the Warren or Burger Courts—the former being lionized by many of the same critics, and the latter at least not branded as illegitimate. The selective outrage here is palpable and unconvincing.

　　Critics also argue that Dobbs is unique because it represents the first time the Court has overturned a right on which many Americans relied. But this claim ignores history. The Court erased substantial economic liberties when it overruled Lochner v. New York and gutted constitutional protections for contracts in Home Building and Loan Ass’n v. Blaisdell, holding that the Contract Clause could be disregarded during economic emergencies—the very moment when such protections are most critical. These decisions eliminated rights that Americans had depended on, rights that were enshrined in the original constitutional framework.

　　It is incumbent upon lawyers, scholars, and commentators to protect the Court from malicious critiques that aim at the institution itself.

　　Moreover, the distinction critics attempt to draw between rights provisions and structural provisions of the Constitution is untenable. The constitutional system of federalism assigns powers to state and federal officials not for their own benefit, but for the benefit of the people. This division of powers serves vital purposes, including satisfying diverse preferences and fostering competition among the states, and between the states and the federal government, to best serve the public. When the New Deal Court effectively dismantled the system of enumerated powers—granting the federal government near-plenary authority—it overruled many prior decisions and, in doing so, undermined important rights of the people. One may disagree about whether these overturned cases were rightly decided, but Roe v. Wade was also highly disputable. The inconsistency in how these critics evaluate the Courts treatment of precedent suggests that their concerns about legitimacy are less about the principle of precedent and more about dissatisfaction with particular outcomes.

　　Another misleading complaint leveled against the Court concerns its use of the emergency docket, often derisively referred to by critics as the shadow docket. The term “shadow docket” can evoke a sense of opacity and subterfuge, playing on the negative connotations of the word shadowy. But the reality is far more benign. This docket is used when the Supreme Court is asked to enjoin a lower courts decision without a full hearing on the merits. Critics argue that these emergency decisions are less transparent, deliberated, and reasoned, given the Courts lack of time for full briefing, oral arguments, and detailed opinion writing. While it is true that the emergency docket operates under compressed timelines, this critique ignores a key reality: all courts maintain emergency dockets precisely because the alternative is worse.

　　Without an emergency docket, courts would be powerless to prevent potentially erroneous lower court decisions or statutes from causing irreparable harm to citizens. For instance, the Supreme Court extensively uses its emergency docket to stay executions and the Court’s current critics do not complain about the practice. During the Covid-19 pandemic, the Court issued several controversial decisions through the emergency docket, particularly when government restrictions imposed unprecedented burdens on liberties. The Court was right to act swiftly when these constraints affected rights, such as the constitutional right to worship or property rights. Critics on the left decried these rulings, but their objections are rooted in disagreement with the outcomes, not in any valid critique of the process itself.

　　Finally, the Court’s critics have launched a fusillade of attacks on the ethics of individual justices. Justice Samuel Alito, for example, was criticized for participating in January 6-related cases after his wife briefly displayed an upside-down American flag, a symbol some associate with sympathy for the Capitol rioters. Similarly, Justice Clarence Thomas faced criticism for receiving gifts from a wealthy friend over several years, with a few of those gifts initially omitted from his financial disclosure forms. Yet, these actions do not seriously undermine the legitimacy of the Court. Nothing has shown that the justices acted with the intention of wrongdoing or that their decisions were influenced by these incidents. Their rulings align with their long-established jurisprudence, not personal favors.

　　These supposed ethical lapses pale in comparison to the conduct of Justice Ruth Bader Ginsburg, who openly called Donald Trump a “faker” and expressed shock that he had avoided releasing his tax returns. She later sat on a case that hinged on whether the House of Representatives could subpoena Trumps tax returns, and yet, few claimed that Ginsburg’s ethics undermined the legitimacy of the Court. This double standard reveals the true ideological nature of the current ethical criticisms.

　　None of these rebuttals to the ideologically driven claims of illegitimacy should suggest that the Supreme Court could not improve. In the age of social media, where baseless accusations can spread like wildfire, shielding the Court from such unfair accusations may need prophylactic measures. One such measure could be for Congress to enact laws preventing justices from accepting gifts of substantial value, reinforcing the Court’s ethical standards. Even absent congressional action, the justices would be wise to adopt such practices on their own accord, recognizing the prudence of maintaining an unassailable public image. Additionally, as demonstrated in Ohio v. EPA, the Court can, when possible, place cases on the emergency docket on an expedited briefing and oral argument schedule. This practice would allow for greater deliberation and transparency, thereby mitigating concerns critics raise about the emergency docket’s perceived lack of thoroughness.

　　The primary responsibility for defending the Court’s legitimacy does not rest with the justices, however, who are constrained in their comments outside their opinions. That duty falls on the broader legal profession and the academy. It is incumbent upon lawyers, scholars, and commentators to protect the Court from malicious critiques that aim at the institution itself. Criticizing particular rulings is part of the vibrant legal discourse that helps improve the law over time. It is also fair game to advocate for constitutional amendments or statutory changes in response to Court decisions, so long as these efforts stay within constitutional bounds. But undermining the legitimacy of the Court threatens the very foundation of the rule of law. By eroding trust in the final arbiter of constitutional meaning in the cases brought before it, such attacks jeopardize the stability of our legal and constitutional order.