Document Type

Working Paper

Publication Date

4-16-2020

SSRN Discipline

Legal Scholarship Network; Law & Society eJournals; LSN Subject Matter eJournals; Criminal Justice Research Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

Scholars have long worried about the legitimacy of the Supreme Court But commentators have largely overlooked the inferior federal judiciary"”and the potential tradeoffs between Supreme Court and lower court legitimacy This Essay aims to call attention to those tradeoffs When the Justices are asked to change the law in highprofile areas"”such as abortion affirmative action or gun rights"”they face a conundrum To protect the legitimacy of the Court the Justices may be reluctant to issue the broad precedents that will most effectively clarify the law"”and thereby guide the lower courts The Justices may instead opt for narrow doctrines or deny review altogether But such an approach puts tremendous pressure on the lower courts which must take the lead on the content of federal law in these highprofile areas Presidents senators and interest groups then zero in on the composition of the lower courts"”in ways that threaten the longterm legitimacy of the inferior federal judiciary Drawing on political science and history this Essay explores these legitimacy tradeoffs within our federal judicial hierarchy To the extent that our legal system aims to protect the legitimacy of the judiciary we should consider not simply the Supreme Court but the entire federal bench

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