In the past 25 years, the power of the presidency has grown exponentially while the power of Congress to check the executive branch has correspondingly diminished.
Of the three branches of government envisioned by the framers of the Constitution, the "judiciary is the last branch really standing. The presidency has broken through all of its bounds," David French, a lawyer and New York Times opinion columnist, said in conversation with Sarah Isgur, a lawyer and editor of SCOTUSblog, at a Jan. 29 talk at Dartmouth.
French and Isgur co-host the podcast Advisory Opinions for the online magazine The Dispatch, which advances conservative principles.
The discussion on "The Supreme Court, Law, and American Democracy" was part of the Rockefeller Center and Dartmouth Dialogues speaker series, Law and Democracy: The United States at 250.
Benjamin Valentino, Nelson A. Rockefeller Professorship in Government and associate dean for the social sciences, and Herschel Nachlis, senior associate director and senior policy fellow at the Rockefeller Center and research assistant professor of government, were the moderators. More than 200 people attended the discussion in Filene Auditorium, with 120 watching a livestream.
If the judiciary and, in particular, the Supreme Court are the bulwark against an overreaching executive branch, why has the legislative branch ceded so much of its authority? And why is there a widely-held public view that that the court, regardless of its makeup, decides cases based largely on politics?
It often leans on the political leanings of the observer, French and Isgur said. "Is the metric that 'the court is always against me?' Or is the metric that 'whenever the court disagrees with me, the court is wrong, and I'm going to not like the court?' Well, that can't be a metric for the health of a branch of government," French said.
What people often misunderstand, Isgur said, is that "it is very rare that the Supreme Court is directly answering a public policy question for the United States. But what the Supreme Court is almost always answering is, who decides what that public policy is going to be?"
A poll last summer from the Pew Research Center found that the Supreme Court, which until recently was the most-respected and admired of the three branches of government, has slipped in public esteem. Positive opinion of the court was 22 percentage points lower than it was in August 2020, when 70% of Americans had a favorable view, according to Pew.
This loss of trust has significant implications for the future of a vital democracy.
"You have people who don't like decisions from the court and want it to be left to the president when they win the presidency. And then when they lose the presidency, somehow they do want the court to be there. It's internally incoherent. But once you destroy the legitimacy of the court, the credibility of the court, you will not get that back," Isgur said.
Sarah Isgur, senior editor at The Dispatch, makes a point to government professor Ben Valentino. (Photo By Eli Burakian '00)
One of the misconceptions about the Supreme Court, said both Isgur and French, is that it almost always votes along ideological lines, with six conservative justices pitted against three liberal ones. In fact, Isgur said, in the 2025 Supreme Court term, only 15% of the cases that came before the court were decided by a 6-3 margin.
"You just can't think of the six as being this monolithic right-wing vote, and then a monolithic left-wing vote, especially with Justice (Elena) Kagan breaking from her three pod so often," Isgur said. It would be more accurate to imagine the court as a "3-3-3" court, with justices moving in and out of their expected spheres of influence, she added.
Another drawback to the public image of the Supreme Court as purely driven by political loyalties is that it focuses on the outcome more than the process—the "what" versus the "why."
"The majority doesn't ever want process. The minority does. And that's why we should all want process, because you don't know when you're going to be in the majority or the minority," Isgur said.
The legislative branch, French said, has the power of the purse, the power to impeach the president, and the power to hire and fire in the judicial and executive branches. But as presidents from George W. Bush to Donald Trump have increasingly relied on executive action to bypass Congress, with the approval of their respective parties, the influence of Congress has weakened.
"Think about all of that power that they have just given away. Given it away, I guess, because those hits on Fox and MSNBC are just so fun compared to legislating, to taking actual risks and stands. But this is where we are," French said.
Questions from students in the audience focused on whether the current court is legitimate. French acknowledged that the word, used most often to describe the court's 2022 decision to overturn Roe v. Wade, is provocative. But it's misused, he said.
"The metric isn't, do you agree with the court? The metric is, is the court performing its function with integrity and staying within its constitutional bounds? And by that standard, I've never heard a coherent argument that the court is illegitimate," French said.
Isgur said that perceptions that the court has a legitimacy problem are "being driven by external actors. Because of the President, because of Congress, all of these questions are winding up in the court, and they are becoming the arbiters."
Members of the Dartmouth community filled Filene Auditorium for the discussion. (Photo By Eli Burakian '00)
Valentino asked Isgur and French whether, in light of current debate about American actions in Venezuela and threats to seize the autonomous Danish territory of Greenland, soldiers in the U.S. military have the right to refuse to carry out orders they view as illegal.
For the most part, individual soldiers can't play "barracks lawyer" if they question a military order, but they can refuse to participate in what would obviously be a war crime, French said.
However, if President Trump decides to declare war against NATO ally Denmark in order to take Greenland, "I do think under the Uniform Code of Military Justice, senior commanders have the right and obligation to say no," French said. "There is no credible legal argument that an armed attack on Denmark under these conditions meets the laws of war."
The existential threats that have imperiled an international order, from World War II to the Cold War to the post-9/11 wars, have led Congress and the courts to confer ever more power on the chief executive, French said. "All of these things push the government and the public towards the man on the horse, the leader, the one who's going to be the singular figure."
"We're in a situation in which the current president is the most powerful single human being to run the United States in a time of relative peace in the entire history of this country. And I think war is a very big part of that answer," French said.
After the talk, Nicole Osano '29 said she appreciated being able to hear the "perspectives of people who are not too polarizing one way or another."
"It was informative and enlightening, and nice to hear a variety of opinions that cover topics that are being discussed currently," added Geair Justice '29.
"They were able to kind of come to the same conclusion on certain things, but also at certain points, respectfully disagree with each other, which is especially valuable at the time that we're in now," said Gigi Kiyabu '29.
All three students, who were sitting together, said they hope to go into the law.
The talk was cosponsored by the Ethics Institute, the Office of the Dean of the Faculty of Arts and Sciences, and the Office of the Associate Dean for the Social Sciences.