Judicial Review As Legitimation In Action!

One of my favorite arguments that's presented in my grandfather's book The People and the Court, which is a defense of the legitimacy of judicial constitutional review in a democracy, is about the way courts can serve a legitimating function. That is, if there's a law whose constitutionality, and thus legitimacy, is in controversy, having it subjected to rigorous judicial review and then get upheld can settle a lot of doubts about its constitutionality and thus legitimacy. The institution of judicial review, then, should significantly increase the confidence of the people that those laws which are being implemented are in fact constitutional and legitimate. It's a really cool theory. It's also the kind of thing you can imagine not happening in practice. (For example, I don't think very many Republicans were convinced by NFIB that the Affordable Care Act is in fact constitutional, although I know of only one Republican type who has anything particularly clever to say about why John Roberts' tax argument is wrong.)

Well, here's an example of it happening in practice. From Kevin Drum's latest piece about how using the Authorization for the Use of Military Force from just after 9/11 as the legal justification for various War on Terror-related activities isn't really okay anymore:

If Congress wants to give the president that power [of targeted killings of American citizens like al-Awlaki], it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.

Just like that! That's exactly what's supposed to happen. The Court declares it unconstitutional, and people accept it as legitimate. Even if they don't like it, they accept it. Just so!