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The Supreme Court’s “legitimacy” rests on the polity’s acceptance of one simple thing–the power of the courts to be wrong. When the polity, or a significant portion thereof rejects this power, what legitimacy the courts have will evaporate. And it will aappen in the bink of an eye.

I suspect the Chief Justice, in his heart of hearts, understands this. That would explain some of his curious, from a purely legal perspective anyway, votes over the past few years. The problem, of course, as I see it, is that bending the legal rules, it undermines the very legitimacy that he hopes to protect.

Let’s take a hypo: Zadvydas v. Davis. Basically, that, to be charitable, regrettable decision, puts removal of what the polity has deemed undesirable aliens at the mercy of a foreign government’s whim. Putting it more bluntly, in its infinite wisdom, five Members of the Supreme Court have deemed that the Constitution somehow gives certain aliens who have no right to walk our streets somehow have the right to walk our streets. To state the proposition, as they say, is to refute it. Thus, at least in my view, this was judicial fiat and not law and deliberately so. This decision has gotten innocent Amreicans killed–criminals have been released back onto our streets and they have done what criiminals do.

Well, if I were President, I’d value the power of the polity to dictate the terms upon which aliens forfeit their rights to walk our streets over some “legitimacy” of the Supreme Court, and I would fight for that. I would publicize every single situation where Zadvydas v. Davis resulted in a serious victimization of an innocent person. And I would call the decision what it is–results oriented for the benefit of alien criminals.

I would also have criminals from Cuba rounded up, transported to Guantanamo Bay and “pushed through the fence” for repatriation. What would the Court do? I suspect it would back down. And it would lose a lot of power.

The FISA Court, by the way, with its granting of a warrant against Carter Page, has thrown away some of the legitimacy of the Article III courts. It’s hard to chalk up the agnosticism regarding the veracity of the government’s showing to a simple mistake. Last I checked, in ex parte proceedings, courts aren’t supposed to swallow whole obviously evasive “speculation” regarding motives. (See the infamous footnote.)

There is an expression–let justice be done, though the heavens may fall. That expresion needs to also include the legitimacy of the courts. Let’s have an accounting and let’s let the chips fall where they may.