Mitch McConnell Brett Kavanaugh Bill Clark/CQ/Roll Call/Pool/Getty Images

Long Reads


How the US Supreme Court Lost Its Legitimacy

Though Democratic presidential candidates have won the popular vote in every single election since 1992, except one, Republicans have managed to secure a far-right majority on the US Supreme Court. As a result, the Court’s claim to be a neutral, non-partisan arbiter for pressing constitutional questions is quickly losing credibility.

NEW YORK – This month’s US Senate Judiciary Committee hearing to consider the nomination of Brett Kavanaugh to a seat on the Supreme Court marks the culmination of a decades-long campaign by the right-wing Federalist Society to reshape the judiciary. For those devout conservatives and their monied backers, faced with the prospect of massive demographic and generational shifts in the country’s body politic, the strategy has long been to find a way to limit severely access to authentic democratic governance in the United States for generations to come. They now seem on the verge of achieving their goal.

The complex interplay between the three branches of the US federal government – the executive, the legislative, and the judicial – is at the heart of American democracy’s system of checks and balances. But now the highest level of the judiciary is in imminent danger of losing the legitimacy that ultimately is the sole basis of its authority. With the coming addition of Kavanaugh to the bench, the American people will need to ask themselves if the Court can still be trusted properly to exercise its lawfully derived powers.

The very word “legitimacy” has etymological roots going back to the concept of lawfulness, from the Latin legitimus. But over the years, it has also become entwined with the related concept of proper (or improper) origins, as in the legitimacy of one’s birth.

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