Abstract
Beyond the controversy on women’s right to elect an abortion, in Dobbs v. Jackson there is a deep yet hidden disagreement over the Court’s source of legitimacy. The majority judgment speaks of the Court’s source of legitimacy in terms of expertise, while the dissenting opinion speaks of it in terms of public support. My starting point for exposing this disagreement is the divergence between the accurate quote of Alexander Hamilton’s famous dictum from the Federalist No. 78 in Justice Alito’s majority opinion, and dissenting Justice Breyer’s paraphrase of the same dictum in the Dobbs oral arguments. The paraphrased version replaced Hamilton’s saying that without the sword and the purse, all the Court has is “judgment” with the saying that all the Court has is “public confidence.” For many decades, both conservative and progressive justices have built an entire jurisprudence that positioned the paraphrase of this dictum as its cornerstone. This seemingly minor paraphrasing captures a profound shift in understanding the Court’s source of legitimacy from understanding it in terms of expertise to understanding it in terms of public support. This shift has led to the Court’s continuous undermining of the traditional divide between law as the domain of reason, and politics as the domain of will. The traditional divide ensured that after going through the political process of passing a law, in the realm of legality, reason (or “judgment” in Hamilton’s terms) reigned supreme. However, starting in the 1930s, the ability to measure public support of the Supreme Court in public opinion polls made legitimacy—understood in terms of public support—the metric for assessing the Court and its judgements. Subsequently, correctness in constitutional law has become more and more dependent on public acceptance rather than the issue of reasoned legal argumentation. Alito’s approach in Dobbs reverts to Hamilton’s original understanding of the Court’s source of legitimacy and has the potential to serve as the starting point for reversing the dangerous trend of eroding the divide between law and politics. To succeed in re-establishing this divide, the Court will have to reconsider other precedents beginning with Heller.
Recommended Citation
Or Bassok,
Legitimacy without Legality,
68
St. Louis U. L.J.
(2023).
Available at:
https://scholarship.law.slu.edu/lj/vol68/iss1/5