SCOTUS faces ‘a catastrophic loss of institutional legitimacy,’ warns author

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In his new book, The Supermajority: How the Supreme Court Divided America, Michael Waldman identifies three times the U.S. Supreme Court caused a public backlash against itself—and warns the court may be well along the path to a fourth massive public backlash.

In this episode of the Modern Law Library, Waldman walks the ABA Journal’s Lee Rawles through the prior episodes of backlash, starting with the fallout from the Dred Scott decision in 1857. He explains the “switch in time that saved nine,” when in 1937 the court narrowly avoided President Franklin D. Roosevelt’s plan to change the makeup of the court by unexpectedly upholding the constitutionality of New Deal legislation. And he posits that much of the contentious legal wrangling of the past half-century can be seen as a backlash to the Warren Court’s decisions like Brown v. Board of Education.

Waldman, a constitutional lawyer who is the president and CEO of the Brennan Center for Justice at the New York University School of Law and a former speechwriter for President Bill Clinton, says that over the period of three days in June 2022, “the Supreme Court changed America.” With decisions overturning Roe v. Wade, loosening gun restrictions and reducing the authority of the Environmental Protection Agency, Waldman argues that the court’s six conservative justices signaled a sea change for the court. He warns that the change from a 5-4 ideological balance to what he terms a “supermajority” of conservative justices will mean a more turbulent relationship between the public and the Supreme Court.

In this episode, Waldman shares his thoughts on the position of Chief Justice Roberts in the new balance, his advice on how the public can respond when the Supreme Court acts in opposition to the public will, and a counter-intuitive theory on why having more former politicians on the Supreme Court might have made the court less politically divisive.