On Monday, Kannon Shanmugam, chair of Paul Weiss's Supreme Court and appellate litigation practice, and one of the nation’s top appellate litigators, spoke to the Duke Law School Federalist Society Student Chapter. Shanmugam clerked for Justice Antonin Scalia.
In a speech titled The Legitimacy of the Supreme Court, he said, “I believe that the criticisms of the Court’s legitimacy are unfounded. But more than that, I believe that attacks on the Court’s legitimacy are dangerous—undermining public confidence in the Court and imperiling the rule of law. Finally, I believe that critics of the current Court would be better served engaging with the Court’s work on the merits.”
Shanmugam objectively and methodically discredited the recent nakedly political attacks on the Court, citing the statistics to back up his arguments. He defended the Court at great risk to himself and his career. Those who attack the Court’s legitimacy and structure are covered favorably by national media organizations eager to amplify those attacks and aggressively “cancel” anyone who disagrees. Members of the SCOTUS Bar “should speak up when we believe that the Court is being unfairly attacked,” Shanmugam said, especially because “[m]any of the allegations are transparently insubstantial.”
This is especially relevant because, as Shanmugam noted, in June 2022, law enforcement arrested and indicted a California man for attempting to murder Justice Kavanaugh; the man was infuriated with the leaked Dobbs draft opinion and the Court’s Second Amendment jurisprudence. The defendant, whose trial is scheduled for June 2025, stated that he intended to kill three Justices. Earlier this month, Justice Barrett revealed that her 13-year-old son had discovered the bulletproof vest which she had to wear due to threats against her.
“I strongly believe that it is time to move away from these attacks on the institution of the Supreme Court and its members, and to move back to the battle of ideas—which, after all, is what the development of the law is supposed to be about,” Shanmugam said. In his conclusion, he urged students to
Remember that, according to its website, the Federalist Society’s “main purpose” is to promote “fair, serious, and open debate” on the legal issues of the day. My charge to all of you today is to carry that purpose forward. Do not be afraid to express your views during your time here. But do so respectfully, and listen to—engage—your classmates and professors who have different views. Disagree agreeably, and be humble enough to take those views into account in developing your own. But above all, do not accept the premise of the critics of the Court’s legitimacy, that law is simply politics by another means. The law is, and I hope always will be, something nobler than that.
Read the whole speech here.
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