is that they mean different things to different people. Thus, discussions cast in these terms sometimes create terminological confusion.
We do not try to assign specific meanings to any of these ideas. But we do think it is useful to articulate the values that underlie the ideas of legitimacy, judicial independence, and democracy, as those ideas pertain to the Court, with the hope of clarifying the terms of the debate and providing ways in which reform proposals might be evaluated.
1. Legitimacy
Nearly all of the matters now being debated—the size and composition of the Court, the Justices’ tenure, the Court’s role in the constitutional system, the propriety and transparency of the Court’s internal processes, and the way in which Justices are appointed and confirmed—are said to implicate questions of legitimacy. There are, however, different ways to understand the idea of legitimacy as it is used in reform debates. Legitimacy might refer to the general level of support that the Court has among the people of the United States, perhaps as reflected in public opinion polls. Or, in a related and more specific use of the term, it might refer to whether people who disagree with a decision by the Court are willing to comply with it.
Those who use legitimacy in one of these ways commonly say that the Court’s legitimacy is crucial to the institution because the federal judiciary has no military or other way to coerce people to comply;[43] the judiciary must rely on others to adhere to its decisions.[44] Alexander Hamilton formulated the point in The Federalist in a way that has become virtually a cliché: “The judiciary … has no influence over either the sword or the purse … and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”[45] The Supreme Court’s capacity to function in its accustomed way, at least in the long term, arguably depends on the Court retaining its legitimacy in this sense.[46]
Sometimes, though, legitimacy is used in these debates to mean something else—to express an evaluative judgment about the Court or its actions, not a prediction about whether it will be obeyed. In particular, people who believe that the Court is functionally a “political” or even partisan body might say that the Court is (or has become) illegitimate. That claim might be made irrespective of whether the Court has lost popular support or its ability to command obedience to its decisions. More generally, the assertion that the Court is illegitimate might be an evaluative judgment that the Court has made decisions that are seriously wrong. Of course, it would be rhetorical overkill, by any standard, to say that every mistaken decision
