Loss of Supreme Court legitimacy can lead to political violence

Resistance in the South to the Supreme Court’s school desegregation order was strong and often violent. This billboard urged impeachment of the court’s then-chief justice, Earl Warren. AP photo^[8]

The integration of the University of Mississippi in 1962^[9] provides a pointed example of this resistance.

The Supreme Court had backed a lower federal court that ordered the university to admit James Meredith^[10], a Black Air Force veteran. But Mississippi Gov. Ross Barnett led a wide-ranging effort to stop Meredith from enrolling at Ole Miss, including deploying state and local police to prevent Meredith from entering campus.

On Sunday, Sept. 30, 1962^[11], Meredith nevertheless arrived on the university’s campus, guarded by dozens of federal marshals, to register and begin classes the next day. A crowd of 2,000 to 3,000 people gathered on campus and broke into a riot. Meredith and the marshals were attacked with Molotov cocktails and gunfire. The marshals fired tear gas in return.

In response, President John F. Kennedy invoked the Insurrection Act^[12] of 1807 and ordered the U.S. Army onto campus to restore order and protect Meredith. Overnight, thousands of troops arrived, battling rioters.

President John F. Kennedy called in federal troops to quell the violence against James Meredith’s enrollment in the University of Mississippi in 1962. Lynn Pelham/Getty Images^[13]

The violence finally ended after 15 hours, leaving two civilians dead – both killed by rioters – and dozens of wounded marshals and soldiers in addition to hundreds of injuries among the insurgent mob.

The next day, Oct. 1, Meredith enrolled in the university^[14] and attended his first class, but thousands of troops remained in Mississippi for months afterward to preserve order.

What some call “the Battle of Oxford^[15]” was fueled by white racism and segregation, but it played out against the backdrop of weak judicial legitimacy. Federal courts did not command enough respect among state officials or ordinary white Mississippians to protect the constitutional rights of Black Mississippians. Neither Gov. Barnett nor the thousands of Oxford rioters were willing to follow the court order for Meredith to enroll at the university.

In the end, the Constitution and the federal courts prevailed only because Kennedy backed them with the Army. But the cost of weak judicial legitimacy was paid in blood.

Legitimacy leads to acceptance

In contrast, when people believe in the legitimacy of their governing institutions, they are more likely to accept, respect and abide by the rules the government – including the courts – ask them to live under, even when the stakes are high and the consequences are far-reaching.

For example, two decades ago, the Supreme Court resolved a disputed presidential election in Bush v. Gore^[16], centered on the counting of ballots in Florida. This time, the court was deeply divided along ideological lines, and its long, complicated and fragmented opinion was based on questionable legal reasoning^[17].

Clashes between riot police and Donald Trump supporters near the U.S. Capitol on Jan. 6, 2021, in Washington. Shay Horse/NurPhoto via Getty Images^[18]

But in 2000, the court enjoyed more robust legitimacy^[19] among the public^[20] than it does today. As a consequence, Florida officials ceased recounting disputed ballots. Vice President Al Gore conceded^[21] the election to Texas Gov. George W. Bush, specifically accepting the Supreme Court’s pivotal ruling^[22].

No Democratic senator^[23] challenged the validity of Florida’s disputed Electoral College votes for Bush. Congress certified the Electoral College’s vote^[24], and Bush was inaugurated^[25].

Democrats were surely disappointed, and some protested^[26]. But the court was viewed as sufficiently legitimate to produce enough acceptance by enough people to ensure a peaceful transition of power. There was no violent riot; there was no open resistance.

Indeed, on the very night that Gore conceded, the chants of his supporters gathered outside tacitly accepted the outcome: “Gore in four!^[27]” – as if to say, “We’ll get you next time, because we believe there will be a next time.”

Risks ahead

But what happens when institutions fail to retain citizens’ loyalty?

The Jan. 6, 2021, insurrection^[28] showcased the consequences of broken legitimacy. The rioters who stormed the Capitol had lost faith in systems that undergird American democracy: counting presidential votes in the states, tallying Electoral College ballots and settling disputes over election law in the courts^[29].

The men and women who stormed the Capitol may have believed their country was being stolen, even if such beliefs were baseless. So, they rebelled in the face of a result they didn’t like.

The threat of further unrest is real. Polls show the 2024 presidential election between President Joe Biden and former President Donald Trump will be a close call^[30], and it is likely that election results in several states will be challenged in federal courts. Some of these claims may raise good-faith questions about the administration of elections, while others advance more spurious claims intended to undermine faith in the election’s outcome.

In the end, Americans’ faith in the timely resolution of those cases and their peaceful acceptance of the presidential election’s result will hinge on whether the losing candidate’s supporters accept the legitimacy of the Supreme Court and the judiciary more broadly.

Nothing is certain in politics, but the specter of constitutional crisis looms over the United States. It’s dangerously unclear whether the Supreme Court retains enough legitimacy to ensure acceptance of decisions addressing the upcoming election among those who find themselves on the losing side. If it doesn’t, the court’s abstract legitimacy problem could once again lead to violence and insurrection.

This story is an updated version of a story that was originally published^[31] on Oct. 31, 2022.

Authors: Matthew Hall, Professor of Constitutional Studies, Political Science and Law, University of Notre Dame

Read more https://theconversation.com/loss-of-supreme-court-legitimacy-can-lead-to-political-violence-233316

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