The Language of Legitimacy: The U.S. Supreme Court’s Hidden Cultural Binaries in the American Civil Sphere

• In Event: 20420 - Section on Sociology of Culture Roundtables
  In Refereed Roundtable (90 minute): Table 9: Culture in Civic Life

Abstract

How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years, the Court has interpreted the U.S. Constitution on watershed issues such as segregation, abortion, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for American society? This article develops a new theoretical and empirical account of such Supreme Court decisionmaking. Using Jeffrey Alexander’s civil sphere theory, it shows how the Court consistently and inevitably draws on the American cultural discourse of liberty, thus rendering Constitutional values intelligible to the broader civil sphere. This article shows this through historical two case studies. First, it explores the cases guaranteeing and then overturning the right to abortion, from Roe v. Wade (1973) to Dobbs v. Jackson Women's Health Organization (2022). Second, it reviews the cases guaranteeing the right to bear arms, beginning with District of Columbia v. Heller (2008). The two sets of cases, at first blush, appear diametrically opposed: Roe is a triumph for the left, Heller a victory for the right. But, in fact, these cases will show that the discourse shares the same pattern: the Court’s defenders hailed the decisions as a restoration of the Constitution or a guarantee of liberty, while opposing justices and commentators draw on the discourse of repression to accuse the Court of “creating a Constitutional right out of nowhere.” This article thus unveils a hidden Supreme Court meta-language, contributing a new cultural sociological understanding of the Supreme Court as a societal institution with unique legal authority and symbolic power.

Author

• Steven Koh, Yale University