In Supreme Hubris: How Overconfidence Is Destroying the Court—and How We Can Fix It, legal scholar Aaron Tang tackles the Supreme Court’s public legitimacy crisis and proposes a solution that cuts across partisan ideologies. In this Q&A, we talk with the author about the least harm principle, the Court’s plummeting public approval ratings, and the importance of political participation.
In Supreme Hubris, you diagnose the problem of disfunction in the Supreme Court as overconfidence, rather than partisanship. Why do you find arguments for packing the court or enacting term limits unconvincing?
AT: It’s certainly understandable why so many Americans are upset about the partisan nature of today’s Supreme Court. It’s impossible to ignore that across the most divisive cases in recent history—on abortion, guns, and voting rights—the justices have voted in virtual lockstep with the political party of the president who appointed them.
The problem with blaming the Court’s eroding public confidence on partisanship alone, though, is that it is not a terribly new feature of the Court. Supreme Court justices have long been partisan in the sense of voting in the preferred direction of their appointing president. Chief Justice John Marshall, perhaps the single greatest jurist in the Court’s history, was appointed by outgoing President John Adams with the express goal of furthering Federalist Party aims. President Franklin D. Roosevelt’s appointees were likewise devout in their commitment to upholding the New Deal programs favored by Democrats. And yet in both periods, the Court was quite popular.
What is different about today’s justices is the extreme degree of overconfidence they now possess in their ability to solve society’s most difficult problems with just the right lawyerly analysis. Whereas Supreme Court justices in the past have tempered their partisanship with a degree of humility—and thus a willingness to defer to the judgment of others, whether elected officials, prior justices, or the people themselves—today’s justices have no trouble casting aside the views of other stakeholders. And the result is a Court that lurches stridently from one case to the next, driving a further wedge between the people.
Once we understand how overconfidence has come to afflict the Court, we are able to see that other solutions may be preferable to those that are frequently discussed. For instance, if partisanship alone were the problem, then perhaps it would make sense to balance the Court with additional more liberal justices. But that approach has real downsides; packed courts presaged the decline of democracies in Turkey, Hungary, and Venezuela. Recognizing the role that overconfidence has played points up another path forward: unrealized threats to pack the Court can pressure the justices into adopting a humbler approach to hard cases. Indeed, that is exactly how the Court saved itself from another legitimacy crisis in 1937, when a pair of justices embraced judicial humility after FDR threatened to pack the Court.
The problem with term limits is somewhat different, and it depends on how one proposes to implement them. If the proposal is to apply term limits to the current justices, there is zero percent chance conservatives would allow them given that such limits would eliminate their stranglehold over today’s Court. And if the idea is to grandfather in current justices and only apply term limits to new ones, then that’s a reform that would take more than a half-century to effectuate any actual change to the Court’s composition. That’s not to say term limits are a bad idea; in fact, I think that even applying them only to future justices would be a worthwhile reform. But we should be clear-eyed about its limited ability to affect anything in the here and now.
To restore the Supreme Court’s battered credibility, you propose the least harm principle. What makes the least harm principle an effective way to decide the hard cases that appear before the court?
AT: It all starts with admitting what today’s justices have found it all but impossible to admit: that sometimes, in the hard cases that divide America, our Constitution and law do not provide clear answers. That shouldn’t be all too surprising: it’s very unlikely that a short, 230-year-old document written almost one hundred years before the lightbulb was invented could offer definitive guidance on the lawfulness of modern “ghost” gun bans, the right to abortion, computer-generated partisan-gerrymandered maps, or many other high profile disputes.
Once a judge openly admits that the law is unclear on these hard issues, that opens the door to a humbler method of decisionmaking. The least harm principle is one such approach that the Supreme Court has used with surprising frequency—and success—across a range of contentious issues in the past several decades. Under this principle, the Court acknowledges the legitimate arguments and important interests on both sides of a case. And because it recognizes the possibility that it may err, it decides the case in a way that does the least harm possible through an ingenious approach: it asks which side, if the Court were to rule against it, would be best able to avoid or minimize its harm using the other options at its disposal. The book has several examples of prominent rulings in which the Court has used this approach to reach outcomes on both sides of the political divide.
You note that court approval ratings can be telling if we look at long term trends in polling data. In early August, confidence in the Supreme Court was at an all time low according to Gallup. What are your thoughts on these recent low approval ratings?
AT: I think it is strong support for the proposition that the Court today is as unpopular as it has ever been. Some of that owes to the Court bucking public opinion on major issues like reproductive autonomy and gun safety. But if you dig deeper, I think there is more to it than that. If the Court’s diminished public standing were just a reflection of political partisanship, one would not expect 33% of Republicans to disapprove of its work, too—to say nothing of 55% of independents.
What’s more, there’s a very important blip that can be observed in the Court’s public approval ratings. The Court’s approval rating was 18 points higher in 2020 than it is today; a full 58% of Americans supported it then, with majorities across party lines. As I show in the book, this is potential evidence that the least harm principle works. The Court in 2020 decided a slew of controversial cases involving subpoenas of Donald Trump, LGBTQ+ rights, abortion, and immigration using that principle, with the result that losing groups had better options available to them than assailing the Court’s credibility.
Throughout your education at Stanford Law School and clerkship with Supreme Court Justice Sonia Sotomayor, was the least harm principle discussed?
AT: One of the interesting things that’s happened as I’ve talked with more audiences about the book and the least harm principle is that so many judges and former law clerks at all levels—from trial courts to appellate courts in the state and federal court systems—have a least harm story. That is, judges often come across hard cases where they aren’t sure who’s “right” on the law. And surprisingly often, they intuit their way to the least harm approach by asking themselves this question: “if I get this question wrong, which side would be better able to fix my mistake through the options and responses it has available?”
In this sense, one goal of the book could be the hope of bringing these kinds of stories and experiences together under a common heading or label. And as I hope to persuade readers in the book, when our judges are confronted with truly tough questions, there are a lot of reasons to want them to rule in this way, with an eye towards minimizing harm, rather than forging ahead in a fog of overconfidence.
What advice would you give to the younger generation, who may be discouraged by recent cases striking down individual rights, affirmative action, and debt relief? How can the general public inspire a more humble, less harmful court?
AT: The biggest thing we can do is stay active in the political process, voting, criticizing the Court, and volunteering for candidates who will stand up to it. If there is anything to be hopeful about in this moment, it is that Americans are paying attention to the Court—and getting angry about it—in ways we haven’t seen in a long, long time. The Court’s eroding public trust is one piece of evidence, but so too are public protests and the growing calls for structural court reform.
History shows that this kind of public frustration can work. That is, after all, the enduring lesson of the New Deal settlement, when a deeply conservative court switched course and began deferring to state and federal economic regulations. This change—the “switch in time that saved nine”—was the product of three things: massive voter turnout in support of Democratic candidates in 1936, actual legislation enacted by Congress that pushed back against unpopular Supreme Court rulings, and FDR’s threat to pack the Court.
The same pressures can work today. For if faced with a choice between being a centrist powerbroker on a trusted, humbler Court and a potentially minority member on a packed and delegitimized Court, I believe in the end that two of today’s conservative justices will choose the former. Indeed, we are already halfway there: there is every reason to think Chief Justice Roberts has already moved towards the center to protect the Court’s public standing. With enough public pressure, frustrated Americans can push another justice to join him.
Aaron Tang is professor at the University of California, Davis, School of Law and a former law clerk to Supreme Court Justice Sonia Sotomayor. His writings have appeared in the New York Times, Washington Post, Los Angeles Times, and Slate.
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