The Supreme Court is supposed to decide questions based on the law, not public opinion. Yet its power consists solely in its ability to issue pieces of paper, which have no effect unless other officials, the ones with guns and money, respect it and are willing to enforce its decisions.

Justice Elena Kagan and Chief Justice John Roberts have been having a public conversation about whether the Court is jeopardizing its legitimacy for reasons that go beyond mere disagreement with results. Recent revelations about a decision last June, declaring that a high school football coach had a right to publicly pray on the field, show that Kagan is right: The Court has a deep problem.

The Court’s position on a range of issues increasingly mirrors the average Republican voter’s. Perhaps not coincidentally, the public’s confidence in the Court has plunged, to the lowest point in the history of polling. Roberts was evidently…Read More

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.