The Illegitimacy Paradigm

Back during the first Trump administration, I sometimess encountered a subtype of ‘resistance’ Twitter user. I don’t have a clever name for them, but they would occasionally show up in my replies. Their basic shtik, sometimes accompanied by a ‘meme,’ was that Trump was fundamentally illegitimate. The reasons why varied. But the most common was that Russian electoral interference rendered his presidency inherently extralegal. In consequence, they claimed, everything he had done — the laws that he signed, the international agreements he made, and, in particular, his judicial nominations — were null and void. Thus, when Democrats retook power, they could magically undo them.

My typical response can be a summed up by a now-venerable — because the half-life of online mimetic culture is very, very short — ‘reaction .gif’:

Russian election meddling might render Trump’s election illegitimate in a substantive and normative sense. This is what Hilary Clinton meant in a comment that launched a thousand false equivalencies. Despite its violations of campaign-finance laws, I don’t think one can dispute that Trump won a free and fair election — at least by our admittedly decaying standards.

By way of comparison, consider Mitch McConnell’s embargo of Merrick Garland’s nomination and his subsequent handling of the Amy Coney Barrett nomination. The first violated an informal, long-standing process norm; the second violated the rule that supposedly overrode that norm. But McConnell’s actions were lawful. They satisfied narrow, formal criteria for procedural legitimacy. They were also normatively illegitimate. (I don’t think we need to make a complicated argument here about republican values, principles of fairness, or whatever. McConnell himself believed that his actions were illegitimate under controlling norms and principles. Otherwise he would not have felt compelled to invent new, superseding ones.)

There’s also another problem with this niche variant of ‘resistance’ argumentation. There are no plausible mechanisms available for ‘voiding’ an entire presidency. In the case of Trump’s judicial appointments, the Democrats would need 67 votes in the Senate to remove them. If Democrats somehow get there on any given ‘Trump judge,’ it almost certainly would not be on the grounds that the appointments and confirmations were themselves illegitimate.,

Impeachment and conviction are not the equivalent of making a judicial appointment ‘null and void.’ They do not automatically invalidate a judge’s rulings. Nor does the successful impeachment of a president undo the legislation that they signed into law, expunge the executive orders that they implemented, or immediately rehire the civil servants that they fired.

So this sub-genre of ‘resistance’ discourse was a fantasy — one built on an extremely shaky premise. But the fundamental logic was… sound. We are under no obligation to respect either illegitimate practices or the outcome of those practices. Indeed, we have a presumptive, but not absolute, duty to undo them.

At least two of Trump’s first-term Court appointments were and remain normatively illegitimate. This gives future Democratic majorities both the legal and the moral right to respond by unpacking the Court. Indeed, Court unpacking is an appropriate response: it is both feasible and proportional. The Court has two members that lack the authority to compel our behavior. We cannot remove them, but we can ensure that outcomes always depend on the votes of legitimate justices.

More importantly, the first Trump administration did have a legitimacy deficit. The second Trump administration? It long ago forfeited any claim to legitimate rule. Its offenses against the law and the Constitution are too numerous to list here. Each day brings a new betrayal of the public trust, the rules of law, or bedrock republican principles. If you want “evidence” then you can read any number of posts here.

I do want to return to the Supreme Court, though. While it seems clear that an overwhelming majority of Democrats view Trump as illegitimate, people have been slower to reject the Court’s authority. Even many pro-democracy legal elites seem, at least anecdotally, particularly reluctant to give up on the Court. They watch the anomalies accumulate, but they resist changing their paradigm.

But it is imperative that we stop according legitimacy to the Court. The Supreme Court is an existential threat to constitutional democracy. This threat cannot be dismissed as ‘merely’ an ideological disagreement about outcome legitimacy (which, I recognize, is a strange thing to write about an institution that is systematically dismantling the foundations of American electoral democracy. But whatever). The Court has also lost any claim to procedural legitimacy. Which is kind of a problem for the branch of government most dependent upon rational-legal authority.* The Court is quite literally lawless. Justices affirm, or even pen, decisions that rely on incommensurable standards of adjudication. They are contemptuous of long-standing precedents, including ones that have guided decades of legislation. Their opinions are riddled with misrepresentations and fabrications.

The Roberts Court has, in essence, replaced the rule of law with a permanent state of exception — and appointed itself sovereign. Yes, it has often used that power to give legal cover to the Trump administration’s own lawlessness. But that is a symptom of its underlying corruption, not the rot itself.

Once we recognize the fundamental illegitimacy of the Roberts Court — and the threat it poses to democracy and the rule of law — the obvious response is reform: unpacking, stripping, and all the rest. But that’s not enough. We must treat the Roberts Court’s decisions as ‘null and void.” A Court that cares nothing for precedent loses the right to make precedent. The Court can choose to create a state of legal exception. We can honor their choice. We can treat their dictates as exceptional and, by definition, irrelevant to any Court, or any regime, that governs according to the rule of law