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Americans are gearing up to celebrate the Fourth of July, and their thoughts are most likely on how many hot dogs to buy for the cookout and whether a family member needs to go stake out a good spot to watch the parade and fireworks.
While the holiday is focused on revelry, July Fourth actually commemorates a solemn moment in the country’s history, when it declared independence from the colonial power Great Britain. The institutions of government imagined by the founders and their successors over the following decades – among them the presidency, Congress, the departments of State and Treasury, the Supreme Court – have retained their authority and legitimacy for more than 200 years, weathering challenges from wars both internal and abroad and massive economic, political and social upheaval.
But now, the Supreme Court, in the wake of a series of highly controversial rulings and ethical questions about some justices, is experiencing historically low public standing. And that has prompted a national conversation about the court’s legitimacy. It’s even drawn rare public comment from three sitting Supreme Court justices.
What’s referred to by experts as the problem of “judicial legitimacy” may seem abstract, but the court’s faltering public support is about more than popularity.
Eroding legitimacy means that government officials and ordinary people become increasingly unlikely to accept public policies with which they disagree. And Americans need only look to the relatively recent past to understand the stakes of the court’s growing legitimacy problem.
The Supreme Court’s 1954 decision in Brown v. Board of Education shined a light on many white Americans’ tenuous loyalty to the authority of the federal judiciary.
In Brown, the court unanimously held that racial segregation in public education violates the equal protection clause of the 14th Amendment. The justices were abundantly aware that their decision would evoke strong emotions. So Chief Justice Earl Warren worked tirelessly to ensure that the court issued a unanimous, short and readable opinion designed to calm the anticipated popular opposition.
Warren’s efforts were in vain. Rather than recognizing the court’s authoritative interpretation of the Constitution, many white Americans participated in an extended, violent campaign of resistance to the desegregation ruling.
The integration of the University of Mississippi in 1962 provides a pointed example of this resistance.
The Supreme Court had backed a lower federal court that ordered the university to admit James Meredith, a Black Air Force veteran. But Mississippi Gov. Ross Barnett led a wide-ranging effort to stop Meredith from enrolling at Ole Miss, including deploying state and local police to prevent Meredith from entering campus.
On Sunday, Sept. 30, 1962, Meredith nevertheless arrived on the university’s campus, guarded by dozens of federal marshals, to register and begin classes the next day. A crowd of 2,000 to 3,000 people gathered on campus and broke into a riot. Meredith and the marshals were attacked with Molotov cocktails and gunfire. The marshals fired tear gas in return.
In response, President John F. Kennedy invoked the Insurrection Act of 1807 and ordered the U.S. Army onto campus to restore order and protect Meredith. Overnight, thousands of troops arrived, battling rioters.
The violence finally ended after 15 hours, leaving two civilians dead – both killed by rioters – and dozens of wounded marshals and soldiers in addition to hundreds of injuries among the insurgent mob.
The next day, Oct. 1, Meredith enrolled in the university and attended his first class, but thousands of troops remained in Mississippi for months afterward to preserve order.
What some call “the Battle of Oxford” was fueled by white racism and segregation, but it played out against the backdrop of weak judicial legitimacy. Federal courts did not command enough respect among state officials or ordinary white Mississippians to protect the constitutional rights of Black Mississippians. Neither Gov. Barnett nor the thousands of Oxford rioters were willing to follow the court order for Meredith to enroll at the university.
In the end, the Constitution and the federal courts prevailed only because Kennedy backed them with the Army. But the cost of weak judicial legitimacy was paid in blood.
In contrast, when people believe in the legitimacy of their governing institutions, they are more likely to accept, respect and abide by the rules the government – including the courts – ask them to live under, even when the stakes are high and the consequences are far-reaching.
For example, two decades ago, the Supreme Court resolved a disputed presidential election in Bush v. Gore, centered on the counting of ballots in Florida. This time, the court was deeply divided along ideological lines, and its long, complicated and fragmented opinion was based on questionable legal reasoning.
But in 2000, the court enjoyed more robust legitimacy among the public than it does today. As a consequence, Florida officials ceased recounting disputed ballots. Vice President Al Gore conceded the election to Texas Gov. George W. Bush, specifically accepting the Supreme Court’s pivotal ruling.
No Democratic senator challenged the validity of Florida’s disputed Electoral College votes for Bush. Congress certified the Electoral College’s vote, and Bush was inaugurated.
Democrats were surely disappointed, and some protested. But the court was viewed as sufficiently legitimate to produce enough acceptance by enough people to ensure a peaceful transition of power. There was no violent riot; there was no open resistance.
Indeed, on the very night that Gore conceded, the chants of his supporters gathered outside tacitly accepted the outcome: “Gore in four!” – as if to say, “We’ll get you next time, because we believe there will be a next time.”
But what happens when institutions fail to retain citizens’ loyalty?
The Jan. 6, 2021, insurrection showcased the consequences of broken legitimacy. The rioters who stormed the Capitol had lost faith in systems that undergird American democracy: counting presidential votes in the states, tallying Electoral College ballots and settling disputes over election law in the courts.
The men and women who stormed the Capitol may have believed their country was being stolen, even if such beliefs were baseless. So, they rebelled in the face of a result they didn’t like.
The threat of further unrest is real. Polls show the 2024 presidential election between President Joe Biden and former President Donald Trump will be a close call, and it is likely that election results in several states will be challenged in federal courts. Some of these claims may raise good-faith questions about the administration of elections, while others advance more spurious claims intended to undermine faith in the election’s outcome.
In the end, Americans’ faith in the timely resolution of those cases and their peaceful acceptance of the presidential election’s result will hinge on whether the losing candidate’s supporters accept the legitimacy of the Supreme Court and the judiciary more broadly.
Nothing is certain in politics, but the specter of constitutional crisis looms over the United States. It’s dangerously unclear whether the Supreme Court retains enough legitimacy to ensure acceptance of decisions addressing the upcoming election among those who find themselves on the losing side. If it doesn’t, the court’s abstract legitimacy problem could once again lead to violence and insurrection.
This story is an updated version of a story that was originally published on Oct. 31, 2022.
Signed into law 60 years ago, the Civil Rights Act of 1964 outlawed discrimination in the U.S. based on “race, color, sex, religion, or national origin.”
Yet, as a historian who studies social movements and political change, I think the law’s most important lesson for today’s movements is not its content but rather how it was achieved.
As firsthand accounts from the era make clear, the movement won because it directly hurt the interests of white business owners. The 1955 Montgomery bus boycott, the 1963 boycott of Birmingham businesses and many lesser-known local boycotts inflicted major costs on local business owners and forced them to support integration.
A view common among scholars, activists and the general public holds that the Civil Rights Movement succeeded because violent attacks against peaceful Black protesters mobilized white public opinion in the movement’s favor.
One of the most famous incidents occurred in Birmingham, Alabama, in May 1963, when the city’s public safety commissioner, Eugene “Bull” Connor, turned fire hoses and dogs on Black demonstrators.
The conventional wisdom is that Connor’s actions outraged Northern whites, and in response, the Kennedy administration sent federal troops to Birmingham and a civil rights bill to Congress.
But this view misunderstands the source of the movement’s power.
For one thing, it overstates public sympathy for the Civil Rights Movement. Three months after the attacks against Black protesters in Birmingham, for instance, almost two-thirds of the public opposed the famous March on Washington for Jobs and Freedom of August 1963.
Moreover, the Kennedy administration predicted that civil rights legislation would hurt the Democrats electorally. “The President never had any illusions about the political advantages of equal rights,” wrote Kennedy aide Arthur Schlesinger in his memoir “A Thousand Days.” “But he saw no alternative” given the movement’s actions.
So what were those actions?
Black organizers aimed to inflict maximal disruption on the white power structure, particularly economic elites. As Martin Luther King Jr. later recounted, “The political power structure listens to the economic power structure.”
By disrupting white businesses, often in a highly organized way, Black activists won social change.
Economic boycotts in Southern cities such as Birmingham and Nashville, Tennessee, played crucial roles during the civil rights era.
A 20-month boycott by Black shoppers of downtown businesses in Greenwood, Mississippi, brought legal changes to the city’s hiring practices in 1964.
The most famous boycott occurred in 1955–56 in Montgomery, Alabama, where the nearly 13-month protest against segregated public transportation caused the city’s bus service to lose an estimated US$3,000 a day in fares.
Black people made up about 75% of public transportation riders. Instead of using city buses, they walked, formed car pools and used Black-owned taxi services. The boycott ended on Dec. 20, 1956, when the U.S. Supreme Court ruled in Browder v. Gayle that segregation on buses was unconstitutional.
By 1960, civil rights organizers were widely embracing this “economic weapon to fight segregation,” reported the national magazine Business Week.
Three years later, Time magazine wrote that boycotts had proved “devastatingly effective” in pushing white business owners and government officials to desegregate.
In Birmingham, for example, real estate tycoon Sidney Smyer led the elite push for integration. Smyer was a staunch racist, but he capitulated amid the boycott and related disruption.
“I’m still a segregationist,” he said in May 1963, but “I’m not a damn fool.”
During five weeks of boycotts, sit-ins and marches, Birmingham businesses had lost millions in sales.
Smyer and his fellow executives decided to cut their losses by integrating. They then dragged along the politicians, judges, school administrators and law enforcement officials.
That had been civil rights strategists’ plan from the start.
According to civil rights organizer Abraham Woods, they hoped that business owners hurt by the boycott in Birmingham would “pressure the city” to integrate.
Andrew Young, an adviser to King, later said that “Bull Connor made the impact greater, but the dynamics would have taken effect without Bull Connor and the dogs. … When the demonstrations were so massive and the economic withdrawal program was so tight, literally, the town was paralyzed.”
The Birmingham victory inspired other Black people to rise up. Kennedy’s Department of Justice reported another 2,062 Black protests in 40 states by the end of 1963.
It also led Kennedy – 28 months into his presidency – to propose a civil rights bill, in June 1963.
Even as he tried to dissuade Black leaders from marching on Washington, Kennedy admitted that the disruptive boycotts and protests “had made the executive branch act faster and were now forcing Congress to entertain legislation,” as Schlesinger reported in his book “A Thousand Days.”
Kennedy also feared the radicalization of Black consciousness after Birmingham. If the federal government didn’t deliver moderate reform, the “colored masses” might embrace “the mindless radicalism of the Negro militants,” as Schlesinger described the president’s logic.
Kennedy’s assassination in November 1963 meant the civil rights bill fell to his successor, Lyndon Johnson. After a heated battle in Congress, Johnson signed the bill into law on July 2, 1964.
By causing massive and sustained disruption to ruling-class interests, particularly businesses, Black organizers who were formally excluded from political power were able to force legal change.
The lesson is that major legislative reform requires mass disruption outside the electoral and legislative spheres. Without that disruption, it will be very difficult to win any law that negatively affects entrenched power-holders.
