Death Drop: The Roberts Court, Legitimacy, and the Future of Democracy in the United States

Julie Novkov

Left critics of the Roberts Court have objected to the Court’s decisions, but also to its efforts to transform the Constitution and constitutional interpretation, upending longstanding organizations of political power and the structure and scope of rights. These critics have questioned the Court’s legitimacy, noting the unpopularity of some of these agendas. The criticisms, however, are hard to distinguish from the routine, if quite serious, objections that liberals have been raising for many years. This Article proposes a turn to queer theory, reading the Court’s work in its recent terms as performance of bad drag: a judicial appropriation of the doctrinal garb of the Fuller Court. The Roberts Court’s bad drag echoes advocacy for structures and principles that operate in a mean-spirited and defensive way, leaving little room for subversive play or the undermining of oppressive power structures.Understanding the Court’s work in these terms provides an alternative approach to critique and highlights why its current behavior poses a serious threat to the institution’s legitimacy.