CAMBRIDGE – Ketanji Brown Jackson’s confirmation as a justice of the US Supreme Court has been hailed as a breakthrough for Black Americans and other minority communities, for women and mothers, for public defenders, and even for those who went to public school. But the biggest winner is the Supreme Court itself.
According to Gallup, more Americans now disapprove of the Supreme Court than approve of it. With public confidence in the institution having fallen from 62% in 2000 to 40% in 2021, legal scholars and political scientists warn of a crisis of legitimacy. Yet support for Jackson’s confirmation was 66%, the highest for any nominee in over a decade.
Although the Court is not supposed to be a “popular” institution, public perceptions still matter, because they bear on a question – and a mystery – with which legal philosophers have been grappling for millennia: Why do people obey the law? Or, put another way: What gives the law – and legal institutions – authority?
In the natural law tradition of Thomas Aquinas, law was conflated with religion and thus derived its authority from the same source as religious diktats: God. But the question becomes trickier in a secular context. According to legal positivists (the most widely accepted account), the “pedigree” – or the institutional origin – of law is what gives it force and sets it above a rule or norm. But this argument creates a chicken-or-egg problem, because one is left with the question of how an institution becomes legally authoritative if not through the power of law.
Legal positivists concede that their explanation requires an “internal point of view.” Hence, whatever theory of law one subscribes to, there is always a psychological element underpinning the functioning of any legal system. Without acceptance by enough individuals, the institution cannot persist. Public confidence – or popularity – thus turns out to be at the very core of the rule of law.
In theory, the positivists’ “internal point of view” could be sustained by morality (believing that there is a moral obligation to obey the law), coercion (obeying the law for fear of the consequences of not doing so), or plain old habit (unthinkingly complying with the law because that is the norm). But as Tom R. Tyler of Yale Law School argues, respect for the law and its institutions is a much stronger motivation than fear of punishment. Tyler’s work shows how we can get from an equilibrium of mere compliance (where people reluctantly abide by the minimum of what the law asks of them) to a culture of cooperation (where people are intrinsically motivated to participate eagerly in society and its legal institutions).
For a rule-of-law institution to succeed, it must account for both the context in which it operates and the cognitive priors of its participants. Or, more to the point, the Supreme Court must adapt to the changing social, political, and demographic realities of the country it serves; and it must contend with the ever-evolving mosaic of experiences and worldviews represented in the American populace.
To this extent, Jackson’s confirmation could bolster the Court’s waning affective appeal. Research has established that Black representation on the bench leads to a greater perception of legitimacy among Black Americans.
The philosopher Martha C. Nussbaum has argued that “political emotions” are crucial to the coherence of political communities. Likewise, the rule of law depends on “legal emotions,” such as a sense among those bound by a legal system that both its letter and spirit are fit for purpose.
The transformation of an apparently demure Rutgers University legal academic into the “Notorious RBG” was a case in point. Ruth Bader Ginsburg’s widespread appeal injected the US judicial system with a surge of legitimizing energy, appealing to many who might otherwise have been impervious to the binding force of law.
The purpose of law is not to terrorize us into obedience; rather, it is to inspire us to become engaged and active citizens. To the extent that she has captured the public imagination, Jackson’s addition to the Supreme Court could be a boon to the broad-based public support upon which the law ultimately depends.
Institutions are inherently fragile. The ransacking of the US Capitol on January 6, 2021, was a sobering reminder of how quickly institutions and norms can unravel. On the other side of the Atlantic, Prime Minister Boris Johnson’s flippancy toward – and flagrant violation of – COVID regulations that stifled the lives of ordinary Britons has exposed 10 Downing Street, the seat of the British government, to attack. So far, public outrage has been directed at Johnson – but the anger could easily mutate into disenchantment with the law itself.
When it comes to the Supreme Court, the institution’s standing has been undermined not just by the political theater that has come to define the confirmation process but also by the increasingly regressive, partisan decisions that it has handed down in recent years. American conservatives frequently profess their love for the “rule of law.” But with only three Republicans supporting Jackson’s confirmation, despite her overwhelming popularity, conservatives are undermining the very institution that they claim to hold sacred.
As Jackson put it after her confirmation, “It has taken 232 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States, but we’ve made it.” I would argue that the “we” in that sentence can apply to the entire judicial system. Jackson’s appointment is not simply an overdue victory for minority communities. It also represents the start of a paradigm shift for the majority. Jackson is not just a Black woman hero. She is an all-American one who should have been treated accordingly from the start.
We have not fully solved the mystery of why we obey the law. But Jackson’s confirmation gives us a powerful additional reason for doing so.
Antara Haldar is University Lecturer in Empirical Legal Studies at the University of Cambridge.
Copyright: Project Syndicate, 2022.