Legitimacy. The word has dominated discussion of the U.S. Supreme Court for years. Some, mostly on the left, claim that the court has lost its legitimacy. The debate on this question even has spread to the court itself, with comments on the matter made by Justices Elena Kagan, John Roberts and Samuel Alito over the summer.
But what does it mean for the current court to be illegitimate? Illegitimacy describes one or both of two conditions: First, it refers to someone occupying a position to which he or she possesses no right. Second, illegitimacy pinpoints the exercise of one’s power in ways flagrantly beyond its proper scope, so much so as to involve powers entirely foreign to the office.
Critics of the Supreme Court make both claims regarding its legitimacy. They argue the last three justices to be appointed — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — have no right to their seats. They further declare that recent decisions, especially during the court’s last term, go so far outside the court’s rightful powers as to make the institution itself illegitimate.
