The most powerful courts in the world share an awkward secret: they cannot enforce a single ruling. When the United States Supreme Court decided Brown v. Board of Education in 1954, President Eisenhower had to send the 101st Airborne Division to Little Rock to make desegregation real. The justices wrote the opinion; soldiers did the work. This gap between judicial pronouncement and actual compliance is not a bug in constitutional design—it is the entire operating system.
High courts function through what political scientists call "diffuse support," a reservoir of public legitimacy accumulated over decades that allows citizens and officials to accept rulings they dislike. When that reservoir runs low, the institution's power evaporates with startling speed. Understanding how courts fill and drain this reservoir illuminates why some constitutional tribunals command obedience across centuries while others become rubber stamps or irrelevancies within a generation.
The legitimacy bank account
Constitutional courts make deposits into their legitimacy accounts through several mechanisms. Procedural consistency matters enormously: when litigants believe they received a fair hearing regardless of outcome, they extend credit to the institution. Perceived independence from partisan politics adds further capital—courts that appear to be extensions of the ruling party spend credibility faster than they earn it. Perhaps most importantly, a track record of occasionally ruling against the interests of the powerful signals that the institution serves law rather than power.
The German Federal Constitutional Court offers a case study in careful accumulation. Established in 1951 amid the rubble of a legal system that had enabled totalitarianism, it built legitimacy by striking down laws from governments of every stripe, by writing exhaustively reasoned opinions, and by maintaining rigid procedural formality. Today it enjoys approval ratings that elected politicians can only envy.
When the account runs dry
The inverse pattern is equally instructive. Poland's Constitutional Tribunal, once among the most respected courts in post-communist Europe, saw its legitimacy collapse after 2015 when the governing Law and Justice party refused to seat properly elected judges and packed the bench with loyalists. The tribunal still issues rulings; compliance has become selective at best. Hungary's Constitutional Court followed a similar trajectory, its jurisdiction progressively stripped after decisions displeased the Orbán government.
These are not ancient cautionary tales. They demonstrate how quickly institutional credibility can dissipate when the implicit bargain between courts and publics breaks down. The bargain is simple but demanding: courts must appear to constrain their own preferences in exchange for the power to constrain everyone else's.
The American experiment under stress
The United States Supreme Court historically maintained high legitimacy through strategic ambiguity—deciding cases narrowly, avoiding unnecessary constitutional pronouncements, and occasionally surprising observers with ideologically unexpected votes. Chief Justice John Roberts explicitly articulated this institutional caution, warning colleagues that the court's power depends entirely on public acceptance.
Recent years have tested this model. Approval ratings have declined to historic lows, and compliance questions that once seemed theoretical have entered mainstream political discourse. Whether this represents a temporary dip or structural erosion remains genuinely uncertain. What is clear is that the court's authority was never guaranteed by the Constitution's text—it was constructed through two centuries of careful institutional behavior and can be deconstructed far more rapidly.
Our take
The fragility of judicial power is a feature, not a bug, of constitutional democracy. Courts that can be ignored are courts that must persuade rather than command, which forces a kind of intellectual discipline that unchecked power never requires. The current stress-testing of high courts across democracies may ultimately strengthen the survivors by reminding them—and us—that legitimacy is rented, never owned. The rent comes due with every controversial decision, and the landlord is always the public.
