The importance of the incorporation of Ketanji Brown Jackson to the Supreme Court of the United States goes beyond the social milestone that it represents. A fragile institution under any circumstances, the rule of law in the United States desperately needs the legitimacy that Jackson can confer.
CAMBRIDGE – The confirmation of Ketanji Brown Jackson as a justice of the United States Supreme Court has been hailed as a milestone for African Americans and other minority communities, for women and mothers, for public defenders, and even for those trained in education. public. But the biggest winner is the Supreme Court itself.
According to Gallup, more Americans today disapprove of the Supreme Court than approve of it. Following the drop in public confidence in the institution from 62% in 2000 to 40% in 2021, legal experts and political scientists warn that a crisis of legitimacy is taking place. However, support for Jackson’s confirmation was 66%, the highest for a nominee in more than a decade.
While the Court is not supposed to be “popular,” public perceptions do matter because they raise a question — and a mystery — that legal philosophers have grappled with for millennia: why do people obey the law? Or, put another way, what gives authority to laws and legal institutions?
In the natural law tradition of Thomas Aquinas, laws are intimately linked with religion and thus derive their authority from the same source as religion: God. But the issue is complicated in a secular context. According to legal positivists (the currently most accepted view), the “pedigree” –or institutional origin- of the law is what gives it its force and puts it above a rule or norm. However, this argument creates a “chicken or the egg” dilemma, because it leaves open the question of how an institution gains legal authority if not through the power of law.
Legal positivists concede that their explanation requires an “internal point of view.” Therefore, whatever legal theory you subscribe to, there will always be a psychological element underpinning the workings of a legal system. Without the buy-in of enough people, the institution cannot persist. Thus, public trust – or popularity – is at the very center of the rule of law.
In theory, the positivists’ “internal point of view” could be based on morality (believing that there is a moral obligation to obey the law), coercion (obeying it for fear of the consequences of not doing so), or simple habit ( comply with the law without questioning it because it is the norm). But as Tom R. Tyler of Yale Law School argues, respect for the law and its institutions is a stronger motivation than fear of punishment. Tyler shows how a balance can be struck between mere compliance (in which people grudgingly comply to the bare minimum of what the law requires of them) and a culture of cooperation (in which they are intrinsically motivated to actively participate in society and its interests). legal institutions).
For a legal institution to function, it must respond both to the context in which it finds itself and to the prior cognitive assumptions of its participants. Or, more to the point, the Supreme Court must adapt to the changing social, political, and demographic realities of its country, and it has to interact with the ever-changing mosaic of experiences and worldviews represented in the American population.
In this respect, Jackson’s confirmation could reinforce the court’s waning emotional appeal. There are studies that show that African-American representation in their seats leads to a greater perception of legitimacy among those who are part of this group.
The philosopher Martha C. Nussbaum has argued that “political emotions” are crucial to the coherence of political communities. Similarly, the rule of law depends on “legal emotions,” such as whether those bound by a legal system feel that both its letter and spirit are fit for purpose.
The transformation of a seemingly demure legal scholar at Rutgers University into the “Celebrity RBG” is illustrative. Ruth Bader Ginsburg’s broad appeal injected the American judicial system with a level of legitimizing energy, drawing in many who might otherwise have been immune to the binding force of law.
The purpose of the law is not to terrify us into obeying it, but to inspire us to be involved and active citizens. To the extent that he has managed to capture the popular imagination, Jackson’s appointment to the Supreme Court could improve the support of the people on whom, in the end, the laws depend.
Institutions are inherently fragile. The storming and looting of the US Capitol on January 6, 2021 was a sobering reminder of how quickly norms and standards can be delegitimized. Across the Atlantic, Prime Minister Boris Johnson’s flippant – and blatant violation – handling of Covid rules that have stifled the lives of ordinary Britons has exposed 10 Downing Street, the seat of British government, to attack. . Until now, popular anger has been directed at Johnson, but it could easily turn into disenchantment with the laws themselves.
Regarding the Supreme Court, its reputation as an institution has been affected not only by the political spectacle that has characterized the confirmation process, but also by the increasingly regressive and partisan decisions it has made in recent years. American conservatives often profess their devotion to the “rule of law,” but with just three Republicans voting in support of Jackson’s confirmation, despite his overwhelming popularity, conservatives are undermining the very institution they claim to protect. .
As Jackson stated after his confirmation: “It has taken 232 years and 115 previous nominations for an African-American woman to be selected to serve on the Supreme Court of the United States, but we have done it.” I would add that the “we” in her phrase can be applied to the entire judicial system. Jackson’s appointment is not simply a long overdue victory for minority communities. It also represents the beginning of a paradigm shift for most. Jackson is not just a black hero. She is a fully American woman who should have been treated as such from the start.
We have not completely solved the mystery of why we obey the law. But Jackson’s confirmation gives us an additional powerful reason to do so.
The author
She is University Professor of Empirical Legal Studies at the University of Cambridge.
Translated from English by David Meléndez Tormen
Copyright: Project Syndicate 1995 – 2022.