The supreme court’s authority is a meme with no basis in law. When push comes to shove, it will literally mean nothing. Politicians only use it as a cudgel to win arguments.

Any of the three branches of government can determine something is illegal. What matters is their ability to put that determination into practice. Like that Seinfeld skit: anyone can take a reservation; what matters is the holding.

It’s also valid for the general population to determine something is illegal, by observing a common understanding of the law and the meanings of words. Something can be obviously illegal in theory and yet the government does nothing about it.

The point is, legality is not a physical fact. It’s not etched into the fabric of reality. It is only a form in which political will is enacted, one which society accepts in what one might call the “civil” epochs of history. But in times of transition, which I think probably includes the current decade, the subordination of the law under direct political agency is laid bare. It is pointless to clutch on to obsolete concepts of legality. We have to constantly adapt our theory as society changes.