The American public’s confidence in the United States Supreme Court is a historic low – in part based on a belief that the Supreme Court is increasingly behaving as a partisan, political body. 

In Supreme Hubris: How Overconfidence Is Destroying the Court--And How We Can Fix It (Yale UP, 2023), legal scholar Aaron Tang argues that partisanship is not the best lens for understanding the Supreme Court. He focuses on overconfidence. According to Professor Tang, the legal arguments of both conservative and liberal justices have a tone of uncompromising certainty. As the Court “lurches stridently from one case to the next,” it delegitimizes opposing views and undermines public confidence in the Court itself.

Restoring the Court’s public legitimacy requires the justices to adopt what Professor Tang calls a “least harm rule.” Examining a range of cases – from LGBTQ rights to immigration to juvenile justice – Tang demonstrates how the least harm principle can provide a promising and legally grounded framework for the difficult cases that divide the US. But this is not work exclusively for the justices. Reform depends on the voters. They must elect representatives who pass legislation that clarifies the public will for the Supreme Court – and consider ways that they can use “private ordering” to assert their rights without the Court.

Professor Aaron Tang (he/him) is a law professor at the University of California, Davis, and a former law clerk to Supreme Court Justice Sonia Sotomayor. He is a frequent commentator about the Supreme Court whose op-eds appear in the New York Times, Los Angeles Times, Washington Post, Slate, The Atlantic, and elsewhere.

Susan Liebell is a Professor of Political Science at Saint Joseph’s University in Philadelphia.

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