Document Type

Working Paper

Publication Date

5-23-2019

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Institutions eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

The past few years have not been good for the Supreme Court In the wake of divisive confirmation battles there are cries that the Court is no longer a "legitimate" institution and growing calls for courtcurbing measures like jurisdiction stripping impeachment and"”most commonly"”"packing" the Court with additional members This Essay which reviews Richard Fallon's Law and Legitimacy in the Supreme Court takes stock of these attacks on the Court Building on Fallon's work as well as political science research and history the Essay argues that in politically charged moments like today the Justices may face a dilemma In order to preserve the Court's public reputation its sociological legitimacy"”and thereby stave off courtcurbing measures"”one or more Justices may feel pressure to modify their constitutional jurisprudence That is some Justices may sacrifice the legal legitimacy of their decisions in order to save the Court as a whole This recurring tension"”between sociological and legal legitimacy"”is the heart of the Supreme Court's legitimacy dilemma

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