The Supreme Court's Legitimacy Is a Historical Construct That the American People Can and Should Reclaim
Source: Dahlia Lithwick, Mark Joseph Stern. "How to fix the worst type of Supreme Court opinion.." August 10, 2026. slate.com
The Gist
The authors argue that Americans have wrongly come to believe the Supreme Court has the final word on the Constitution, when historically this wasn't the case—the Court used to be openly political, opinions were short and accessible, and the public and Congress played active roles in shaping constitutional meaning. They call for citizens to get politically engaged and pressure lawmakers to check the Court's power, using historical examples like the resistance to Dred Scott as models for reclaiming the Constitution as something owned by the people, not just judges.
Conclusion
The public should reject the modern belief that the Supreme Court has final, unchallengeable authority over constitutional meaning, and instead reassert popular constitutionalism by engaging politically to challenge, discipline, and reclaim ownership of the Constitution from the Court.
Premises
- The belief that the Supreme Court has the final, irrevocable say on constitutional meaning is a recent historical development, not an inherent feature of American constitutionalism.
- Prior to the mid-20th century, justices were often political actors (governors, politicians) rather than career jurists, and the Court was widely understood as a political institution rather than an oracular legal authority.
- The professionalization of the judiciary and the rise of long, dense, jargon-laden opinions (as opposed to short, accessible ones like Brown v. Board) have created a false mystique that only elite legal experts can interpret the Constitution, disempowering ordinary citizens.
- Modern Supreme Court opinions have become longer and less frequent, which serves to insulate the Court from public accountability and responsiveness rather than reflecting genuine improvements in reasoning (exemplified by Clarence Thomas's bloated, cherry-picked dissent in the birthright citizenship case).
- Historical examples—such as the political repudiation of Dred Scott, Reconstruction-era activism, and movements like Obergefell and Heller—demonstrate that the American people and Congress have historically played an active role in shaping constitutional meaning, rather than passively deferring to the Court.
- Congress possesses significant structural power over the Court (docket control, structure, size) that has gone underutilized due to congressional deference and inactivity.
- Grassroots political pressure and engagement (e.g., questioning candidates, town halls) can push lawmakers to reassert checks on judicial power, as seen in other policy areas.
Assumptions
- The current perception of judicial supremacy is illegitimate or at least contingent, rather than a necessary or desirable feature of constitutional democracy.
- Increased political engagement and congressional action would produce better or more democratically legitimate constitutional outcomes than the current Court-centric system.
- Complexity and length in judicial opinions are primarily tools of obfuscation and power consolidation rather than genuine attempts at thorough legal reasoning.
- The public is capable of and interested in reclaiming an active role in constitutional interpretation if given the opportunity or encouragement.
- Historical precedents for challenging Court authority (e.g., Dred Scott) are appropriate models for contemporary political action.