To Legitimacy and Beyond: A Reform Agenda to Restore Public Confidence in the Federal Courts

Abstract

The article begins by describing he ongoing cycle of anti-court sentiment directed at the federal courts. It situates that cycle in historical context, to the end of showing how independence norms have evolved to constrain more draconian efforts to curb the courts in those cycles. The article then explains why the latest cycle is unusually aggressive and why norms that have protected the judiciary’s independence for generations may be at risk if public skepticism of the courts reaches the point of undermining the judiciary’s perceived legitimacy. Next, the article sorts through the definitional clutter that complicates assessments of whether the current cycle of hostility is diminishing court “legitimacy”—a term that social scientists and commentators have deployed as the tipping point when public faith in the judiciary falters. I propose to avoid the confusion that legitimacy talk perpetuates by thinking about the public’s confidence in the judiciary’s authority to govern as a matter of degree, along a “public confidence continuum.” The article then synthesizes data on the impact of recent developments in the latest cycle of anti-court sentiment, which shows that faith in the Supreme Court, and possibly the lower courts as well, has declined across the public confidence continuum. Finally, the article proposes a preliminary, pragmatic, principled, and intra-judicial reform agenda, to restore public confidence in the federal judiciary.