Or Bassok (University of Nottingham - Faculty of Law and Social Sciences) has posted Legitimacy without Legality on SSRN. Here is the 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. By focusing on a divergence between Justice Alito’s accurate quote of Alexander Hamilton’s famous dictum from the Federalist No. 78 in his majority opinion and dissenting Justice Breyer’s paraphrase of the same dictum in the Dobbs oral arguments, I expose this divergence. For many decades, both conservative and progressive justices have built an entire jurisprudence that positioned the erroneous paraphrase of this dictum as its corner stone. 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.” This seemingly minor shift captures the rationale behind 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 “judgement” in Hamilton’s term) reigned supreme. The public’s support for a certain legal argument or the “public confidence” in the Court were not supposed to have any force in the realm of legality. Yet, starting in the 1930s, the ability to measure public support of the Supreme Court in public opinion polls allowed public will to penetrate the realm of legality in an unprecedented manner. Legitimacy—understood in terms of public support—has become 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 an issue of reasoned legal argumentation. Alito’s approach reverts to Hamilton’s original understanding of the Court’s source of legitimacy. While Alito may lack a majority on the Court on this issue, his judgment may serve as the starting point for reversing the dangerous trend of dissolving the divide between law and politics. To succeed in re-establishing this divide, the Court will have to reconsider other precedents beginning with Heller.
Highly recommended.
