The Conversation US

Political experts break down the Supreme Court’s crisis of legitimacy

The Supreme Court’s historically low public standing has prompted a national conversation about the court’s legitimacy. It’s even drawn rare public comment from three sitting Supreme Court justices. What’s referred to by experts as the problem of “judicial legitimacy” may seem abstract, but the court’s faltering public support is about more than popularity.

Eroding legitimacy means that government officials and ordinary people become increasingly unlikely to accept public policies with which they disagree. And Americans need only look to the relatively recent past to understand the stakes of the court’s growing legitimacy problem.

Cost ‘paid in blood’

The Supreme Court’s 1954 decision in Brown v. Board of Education shined a light on many white Americans’ tenuous loyalty to the authority of the federal judiciary.

In Brown, the court unanimously held that racial segregation in public education violates the equal protection clause of the 14th Amendment. The justices were abundantly aware that their decision would evoke strong emotions. So Chief Justice Earl Warren worked tirelessly to ensure that the court issued a unanimous, short and readable opinion designed to calm the anticipated popular opposition.

Warren’s efforts were in vain. Rather than recognizing the court’s authoritative interpretation of the Constitution, many white Americans participated in an extended, violent campaign of resistance to the desegregation ruling.

The integration of the University of Mississippi in 1962 provides a pointed example of this resistance.

The Supreme Court had backed a lower federal court that ordered the university to admit James Meredith, a Black Air Force veteran. But Mississippi Gov. Ross Barnett led a wide-ranging effort to stop Meredith from enrolling at Ole Miss, including deploying state and local police to prevent Meredith from entering campus.

On Sunday, Sept. 30, 1962, Meredith nevertheless arrived on the university’s campus, guarded by dozens of federal marshals, to register and begin classes the next day. A crowd of 2,000 to 3,000 people gathered on campus and broke into a riot. Meredith and the marshals were attacked with Molotov cocktails and gunfire. The marshals fired tear gas in return.

In response, President John F. Kennedy invoked the Insurrection Act of 1807 and ordered the U.S. Army onto campus to restore order and protect Meredith. Overnight, thousands of troops arrived, battling rioters.

The violence finally ended after 15 hours, leaving two civilians dead – both killed by rioters – and dozens of wounded marshals and soldiers in addition to hundreds of injuries among the insurgent mob.

The next day, Oct. 1, Meredith enrolled in the university and attended his first class, but thousands of troops remained in Mississippi for months afterward to preserve order.

What some call “the Battle of Oxford” was fueled by white racism and segregation, but it played out against the backdrop of weak judicial legitimacy. Federal courts did not command enough respect among state officials or ordinary white Mississippians to protect the constitutional rights of Black Mississippians. Neither Gov. Barnett nor the thousands of Oxford rioters were willing to follow the court order for Meredith to enroll at the university.

In the end, the Constitution and the federal courts prevailed only because Kennedy backed them with the Army. But the cost of weak judicial legitimacy was paid in blood.

Legitimacy leads to acceptance

In contrast, when people believe in the legitimacy of their governing institutions, they are more likely to accept, respect and abide by the rules the government – including the courts – ask them to live under, even when the stakes are high and the consequences are far-reaching.

For example, two decades ago, the Supreme Court resolved a disputed presidential election in Bush v. Gore, centered on the counting of ballots in Florida. This time, the court was deeply divided along ideological lines, and its long, complicated and fragmented opinion was based on questionable legal reasoning.

But in 2000, the court enjoyed more robust legitimacy among the public than it does today. As a consequence, Florida officials ceased recounting disputed ballots. Vice President Al Gore conceded the election to Texas Gov. George W. Bush, specifically accepting the Supreme Court’s pivotal ruling.

No Democratic senator challenged the validity of Florida’s disputed Electoral College votes for Bush. Congress certified the Electoral College’s vote, and Bush was inaugurated.

Democrats were surely disappointed, and some protested. But the court was viewed as sufficiently legitimate to produce enough acceptance by enough people to ensure a peaceful transition of power. There was no violent riot; there was no open resistance.

Indeed, on the very night that Gore conceded, the chants of his supporters gathered outside tacitly accepted the outcome: “Gore in four!” – as if to say, “We’ll get you next time, because we believe there will be a next time.”

Risks ahead

But what happens when institutions fail to retain citizens’ loyalty?

The Jan. 6, 2021, insurrection showcased the consequences of broken legitimacy. The rioters who stormed the Capitol had lost faith in systems that undergird American democracy: counting presidential votes in the states, tallying Electoral College ballots and settling disputes over election law in the courts.

The rioters may well have believed their country was being stolen, even if such beliefs were baseless. So, they rebelled in the face of a result they didn’t like.

This threat is far from gone. In addition to numerous important questions about individual rights and the scope of government power, the Supreme Court may soon be asked to resolve disputes over the administration of elections and the power to certify election winners – particularly the authority to designate a slate of presidential electors.

Nothing is certain in politics, but the specter of constitutional crisis looms over the United States. It’s dangerously unclear whether the Supreme Court retains enough legitimacy to authoritatively resolve such disputes. If it doesn’t, the court’s abstract legitimacy problem could once again end with blood in the streets.The Conversation

Joseph Daniel Ura, Professor of Political Science, Texas A&M University and Matthew Hall, , University of Notre Dame

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Employees feel burned over broken work-from-home promises and corporate culture ‘BS’ as employers try to return to offices

As vaccinations and relaxed health guidelines make returning to the office a reality for more companies, there seems to be a disconnect between managers and their workers over remote work.

A good example of this is a recent op-ed written by the CEO of a Washington, D.C., magazine that suggested workers could lose benefits like health care if they insist on continuing to work remotely as the COVID-19 pandemic recedes. The staff reacted by refusing to publish for a day.

While the CEO later apologized, she isn't alone in appearing to bungle the transition back to the office after over a year in which tens of millions of employees were forced to work from home. A recent survey of full-time corporate or government employees found that two-thirds say their employers either have not communicated a post-pandemic office strategy or have only vaguely done so.

As workforce scholars, we are interested in teasing out how workers are dealing with this situation. Our recent research found that this failure to communicate clearly is hurting morale, culture and retention.

Workers relocating

We first began investigating workers' pandemic experiences in July 2020 as shelter-in-place orders shuttered offices and remote work was widespread. At the time, we wanted to know how workers were using their newfound freedom to potentially work virtually from anywhere.

We analyzed a dataset that a business and technology newsletter attained from surveying its 585,000 active readers. It asked them whether they planned to relocate during the next six months and to share their story about why and where from and to.

After a review, we had just under 3,000 responses, including 1,361 people who were planning to relocate or had recently done so. We systematically coded these responses to understand their motives and, based on distances moved, the degree of ongoing remote-work policy they would likely need.

We found that a segment of these employees would require a full remote-work arrangement based on the distance moved from their office, and another portion would face a longer commute. Woven throughout this was the explicit or implicit expectation of some degree of ongoing remote work among many of the workers who moved during the pandemic.

In other words, many of these workers were moving on the assumption – or promise – that they'd be able to keep working remotely at least some of the time after the pandemic ended. Or they seemed willing to quit if their employer didn't oblige.

UML Global Webinar Remote Work Changing the Landscape for Talent youtu.be

We wanted to see how these expectations were being met as the pandemic started to wind down in March 2021. So we searched online communities in Reddit to see what workers were saying. One forum proved particularly useful. A member asked, "Has your employer made remote work permanent yet or is it still in the air?" and went on to share his own experience. This post generated 101 responses with a good amount of detail on what their respective individual companies were doing.

While this qualitative data is only a small sample that is not necessarily representative of the U.S. population at large, these posts allowed us to delve into a richer understanding of how workers feel, which a simple stat can't provide.

We found a disconnect between workers and management that starts with but goes beyond the issue of the remote-work policy itself. Broadly speaking, we found three recurring themes in these anonymous posts.

1. Broken remote-work promises

Others have also found that people are taking advantage of pandemic-related remote work to relocate to a city at a distance large enough that it would require partial or full-time remote work after people return to the office.

A recent survey by consulting firm PwC found that almost a quarter of workers were considering or planning to move more than 50 miles from one of their employer's main offices. The survey also found 12% have already made such a move during the pandemic without getting a new job.

Our early findings suggested some workers would quit their current job rather than give up their new location if required by their employer, and we saw this actually start to occur in March.

One worker planned a move from Phoenix to Tulsa with her fiancé to get a bigger place with cheaper rent after her company went remote. She later had to leave her job for the move, even though "they told me they would allow me to work from home, then said never mind about it."

Another worker indicated the promise to work remotely was only implicit, but he still had his hopes up when leaders "gassed us up for months saying we'd likely be able to keep working from home and come in occasionally" and then changed their minds and demanded employees return to the office once vaccinated.

2. Confused remote-work policies

Another constant refrain we read in the worker comments was disappointment in their company's remote-work policy – or lack thereof.

Whether workers said they were staying remote for now, returning to the office or still unsure, we found that nearly a quarter of the people in our sample said their leaders were not giving them meaningful explanations of what was driving the policy. Even worse, the explanations sometimes felt confusing or insulting.

One worker complained that the manager "wanted butts in seats because we couldn't be trusted to [work from home] even though we'd been doing it since last March," adding: "I'm giving my notice on Monday."

Another, whose company issued a two-week timeline for all to return to the office, griped: "Our leadership felt people weren't as productive at home. While as a company we've hit most of our goals for the year. … Makes no sense."

After a long period of office shutterings, it stands to reason workers would need time to readjust to office life, a point expressed in recent survey results. Employers that quickly flip the switch in calling workers back and do so with poor clarifying rationale risk appearing tone-deaf.

It suggests a lack of trust in productivity at a time when many workers report putting in more effort than ever and being strained by the increased digital intensity of their job – that is, the growing number of online meetings and chats.

And even when companies said they wouldn't require a return to the office, workers still faulted them for their motives, which many employees described as financially motivated.

"We are going hybrid," one worker wrote. "I personally don't think the company is doing it for us. … I think they realized how efficient and how much money they are saving."

Only a small minority of workers in our sample said their company asked for input on what employees actually want from a future remote work policy. Given that leaders are rightly concerned about company culture, we believe they are missing a key opportunity to engage with workers on the issue and show their policy rationales aren't only about dollars and cents.

3. Corporate culture 'BS'

Management gurus such as Peter Drucker and other scholars have found that corporate culture is very important to binding together workers in an organization, especially in times of stress.

A company's culture is essentially its values and beliefs shared among its members. That's harder to foster when everyone is working remotely.

That's likely why corporate human resource executives rank maintaining organizational culture as their top workforce priority for 2021.

But many of the forum posts we reviewed suggested that employer efforts to do that during the pandemic by orchestrating team outings and other get-togethers were actually pushing workers away, and that this type of "culture building" was not welcome.

[Like what you've read? Want more? Sign up for The Conversation's daily newsletter.]

One worker's company "had everyone come into the office for an outdoor luncheon a week ago," according to a post, adding: "Idiots."

Surveys have found that what workers want most from management, on the issue of corporate culture, are more remote-work resources, updated policies on flexibility and more communication from leadership.

As another worker put it, "I can tell you, most people really don't give 2 flips about 'company culture' and think it's BS."

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