The Incoherence of Illegitimacy

It’s safe to assume that a book referring to The Dispatch’s Jonah Goldberg as a “right-wing pop historian” is not worth taking seriously. Anyone looking to confirm that assumption can simply read Michael Waldman’s The Supermajority: How the Supreme Court Divided America.

Waldman—the president and CEO of the Brennan Center for Justice and a professor at NYU School of Law—paints legal conservatism as a grand anti-democratic conspiracy. He describes the Federalist Society as a “real deal” plot against democracy and portrays the court’s current Republican-appointed majority as partisan hacks and sellouts dressed up in robes. (“Dobbs and Bruen were for the Republican Party voters; West Virginia v. EPA was for the paying customers.”) 

The overcharged rhetoric in The Supermajority could be forgiven if Waldman fleshed out substantive disagreements with conservative jurisprudence. But that wouldn’t feed the “illegitimacy” narrative in vogue among certain think pieces, nor prove the existence of a deep state-like cabal of extreme right-wing justices. Instead, Waldman doubles down on left-wing conspiratorial claims reminiscent of right-wing ones that sought to overturn a presidential election in 2020. It’s just this time they’re directed at the integrity of Article III instead of Article II.

Waldman wanders across a lot of ground in The Supermajority. In surveying the history of American “court fights,” he recounts the sparse debates about the power of the Supreme Court in the Constitutional Convention of 1787; the infamous Dred Scott decision by Chief Justice Roger Taney; the judicial overreach during the Lochner-era in the early 1900s; FDR’s failed court-packing plan; and the activism of the Warren Court in the 1950s and ’60s. While he acknowledges that the Warren Court grew “unmoored” and even criticizes the subsequent Burger Court for its “hubris,” Waldman’s main goal is to emphasize the novel dangers posed by the conservative Roberts Court.