Melissa Murray Discusses Crisis of Legitimacy in the Supreme Court at Annual Constitution Day Talk

On Monday, Sept. 19 at 7 p.m., students, faculty, and guests gathered in Kohlberg Hall’s Scheuer Room for a conversation about the Supreme Court and the U.S. Constitution with Frederick I. and Grace Stokes Professor of Law at NYU School of Law Melissa Murray, and Associate Professor of Political Science Ben Berger. Murray teaches constitutional law, family law, criminal law, and reproductive rights and justice at NYU School of Law. She is also an MSNBC contributor and co-host of the Crooked Media podcast, “Strict Scrutiny.”

This year, Murray was invited to Swarthmore by the Department of Political Science as the speaker for the annual Constitution Day lecture for National Constitution Day, which marks the signing of the U.S. Constitution on Sept. 17, 1787. Past Constitution Day speakers include Former Massachusetts Governor and Democratic Presidential Candidate Michael Dukakis ’55, Colorado Attorney General Phil Weiser ’90, and U.S. District Judge for the Southern District of New York Jed Rackoff ’64.

Murray began her remarks by commenting on the Supreme Court’s upcoming October term. She emphasized that this upcoming term will be as consequential as the most recent 2021-2022 term, which ruled on a number of important issues, including gun rights, climate change, immigration, and, most notably, abortion. She noted that the court is prepared to hear arguments concerning affirmative action, Native American sovereignty, and voting rights in the upcoming 2022-2023 term. 

Murray also spoke at length about the court’s 6-3 decision in Dobbs v. Jackson (2022) — a review of the Missouri Law HB 1510 that banned abortion at fifteen weeks. She explained that the conservative composition of the court following the passing of Justice Ruth Bader Ginsburg had a profound impact on the case. When Ginsburg was on the court, the case centered on the fifteen-week viability line in Missouri law. Following her passing and replacement by Justice Amy Coney Barrett, the case shifted to a more serious question regarding the constitutionality of the court’s decisions in the landmark cases of Roe v. Wade (1973) and Planned Parenthood v. Casey (1992)

The court’s shift to considering more serious constitutional questions has proven controversial and unpopular to the American public. This, Murray explained, is dangerous territory for the court, because it might call the court’s legitimacy into question.  

“In going beyond what was required in this instance [in Dobbs], the court was setting itself up for a legitimacy crisis,” Murray said. 

She elaborated on this point by explaining that, unlike the legislative branch, which wields power by withholding funds, and the executive branch, which has the power to command an army, the Supreme Court must derive its power and legitimacy elsewhere: through its actions. Murray then presented a question to the audience concerning the court’s crisis of legitimacy. 

“If the public no longer views the court as legitimate — and polling suggests that many in this country view the court’s work in Dobbs as a function of politics and not law — what does it mean for this institution that was understood as a bulwark against the encroachment of the other two branches, and indeed a protector of civil rights?” she asked. 

Following Murray’s initial discussion on the court’s loss of legitimacy and the stakes of the court’s upcoming October term, Professor Berger opened up the floor to questions from students and faculty. 

Noah Pearlman ’25 asked Murray how the court can try to re-earn its legitimacy. Murray responded by claiming that it is easy for the court to regain its legitimacy — by simply slowing down and “putting on the brakes.” She mentioned that on “Strict Scrutiny,” she likes to joke that the Roberts court is the “YOLO court.” This past term, she explained, the court saw a 6-3 supermajority and decided to review, or grant certiorari on, several consequential cases, including four cases regarding religious freedom, in an effort to push conservative decisions through while there is still a conservative supermajority on the court.  

“They want to get things done. They are checking off the to-do list of the conservative legal movement,” she explained. “They’re just going through a laundry list of things that they don’t like and they’re being as expeditious about it as possible.”

Regarding the unpopularity of the Dobbs decision and the speed at which the conservative supermajority ruled on several controversial issues, Andie Kapiloff ’23 asked Murray whether the current court represents a greater dissolution of American democracy at large. Murray responded by emphasizing that, while many of her colleagues engage in questions concerning democratic backsliding, she prefers to stray away from such questions because the issues with which the court engages are very real and personal, not hypothetical or theoretical. 

“We actually feel this right now. I have a daughter who is fourteen. I am a woman in the world … for some people, these questions [of democracy] are not hypothetical, they are not theoretical. It is real life.”

Murray concluded by offering suggestions for younger generations interested in taking action in social and political reform. She emphasized that younger individuals hoping to create change can do so even at the local level, and that it is possible to create change through persistence. 

“You have infinite resources. You have infinite talent and you have infinite time, you just need to have infinite will,” she explained. “It’s not just law, it’s not just politics, it’s also grassroots organizing, and I know it sounds super cliche, but you have to vote … get in the fight.”

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