Justice Kavanaugh’s Appointment Restores Legitimacy at the Supreme Court


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

Anti-Christian activists recently suggested the appointment of Justice Kavanaugh to the Supreme Court undermines that institution’s legitimacy.  Nothing could be further from the truth.  Indeed, Justice Kavanaugh’s appointment restores legitimacy to a Supreme Court in desperate need of it.

Let us begin by discussing the legitimacy of our governing institutions generally.

Legislative Legitimacy

In Article I of the Constitution, we the people delegate powers to Congress. Those powers give that politically accountable branch legitimacy. Members of Congress, with the power we delegate to them, decide policy. For example, in all the states we have seatbelts in our cars. Why do we have seatbelts in our cars? Well, because the United States Congress has the power to tax and spend.  Congress said, “States, if you want Federal highway funds, put seatbelts in your cars.” The powers that we the people give Congress to carry out their proper role of making law give that branch legitimacy. Because they make policy impacting our everyday living, Congress is politically accountable to the people. That is why they regularly face a job interview we call an election.

Executive Legitimacy

In Article II, we the people give the executive branch a tremendous amount of power to carry out its role of enforcing the law. The President, for example, serves as Commander-in-Chief of an armed forces unequaled anywhere in the world. Because of the awesome fire power our nation possesses to protect itself against its enemies, no one questions the legitimacy of the executive branch.

Judicial Legitimacy

The judicial branch has legitimacy only because we the people trust the Court to decide matters fairly under the Constitution. So that the Court may independently do so free from political influence, Justices, under Article III, hold lifetime appointments and are not politically accountable to the voting citizenry. With this privilege comes responsibility.

When a Justice looks at the Constitution and says what it means, and then applies that constitutional principle to resolve a dispute, we the people view the work as legitimate.

Sometimes though, a Justice dislikes what he or she finds in the Constitution. For example, in the infamous Dred Scott case, Justice Taney deemed that the color of one’s skin disqualified one from enjoying the protections of our Constitution.  In Roe v Wade and elsewhere, other justices deemed a new constitutional right of personal autonomy/ identity into existence … justifying a political agenda that includes abortion on demand and same-sex marriage.  When a Justice changes the meaning of the Constitution to further a political agenda, that political activity usurps Congress’s constitutional role. When that happens, the citizenry begins to view the Court’s activity as illegitimate.

Justice Kavanaugh’s Appointment Restores Legitimacy

All the evidence indicates that Justice Kavanaugh is a constitutionalist.  His record reflects a commitment to deciding disputes based upon what the Constitution says. It also confirms his unwillingness change the meaning of its provisions to fit a preferred political agenda. Thus, Justice Kavanagh’s appointment to the Supreme Court restores legitimacy to the Court. Any suggestions to the contrary lack any merit whatsoever.

About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

More On

This Issue