I have a piece at the Daily Beast about the ACA decision which suggests some reasons to be skeptical.
I’m particularly interested in the assertion that the professional quality — as measured by the craft values of the legal profession — of the arguments in SCOTUS opinions has or at least in certain circumstances can have a serious effect on the Court’s perceived legitimacy. It’s a commonplace of criticisms of particularly controversial Supreme Court decisions to assume this is the case. Indeed justices make the claim themselves routinely, as for example in the concluding passage of Justice Stevens’ dissent in Bush v. Gore:
It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
Is there any evidence of such an effect, either in regard to Bush v. Gore or other SCOTUS decisions?