E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The legitimacy of the Supreme Court is often raised as a concern following controversial or unpopular decisions. Dobbs is the latest example, with sitting Justices murmuring about the issue and commentators saying the quiet part out loud. To my mind, this chatter is just hyperbole. There is a simple test for the Court's legitimacy: Do litigants stop participating in Supreme Court cases?
Take the affirmative action cases that will be heard next month. Suppose Harvard refused to file a brief and boycotted the oral argument. "The fix is in," Harvard might say, "and we refuse to dignify this sham hearing through our presence." Of course, Harvard is not doing that and never gave the idea any thought. Nor have any commentators. This is what you might call a revealed preference that the Court is legitimate and that no serious person thinks otherwise.
Now there are famous examples of Supreme Court boycotts. Marbury v. Madison is one and Worcester v. Georgia is another. In both instances, there was a serious view that the Court was not legitimate (at least in part) that the Justices formally ignored but informally acknowledged in denying an effective remedy to the party that showed up and won. (Today one wonders if the Court would appoint an amicus curiae to argue somebody like Madison's position rather than leave counsel's chair vacant.) We are nowhere close to that.