Month: August 2022

Warnings that the Supreme Court is fundamentally at odds with the American public are overwrought on two levels. First, the alleged rift between the Court and the public is greatly exaggerated. Public opinion divides sharply on most controversial issues the Court addresses, with major segments of the population on either side of any given case. More often than not, the Court’s decisions align with public opinion overall. The real disconnect is not between the Court and the public at large but between factions of the public. Second, basing decisions on perceived popular sentiment would be disastrous both for the Court and for the public. It would reduce the justices to mere “politicians in robes” and rob the Court of any credibility. Given current cultural trends, it could also lead to major retrenchments in existing constitutional rights.

One complaint by critics who challenge the credibility or even the “legitimacy” of the Supreme Court is that its decisions are increasingly out of sync with public opinion. Even Justice Elena Kagan raised the alarm when she observed at a recent conference:

“I’m not talking about any particular decision or even any particular series of decisions, but if over time the court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.”   

Clearly, there is a major disconnect between many of the Court’s recent decisions and the sentiment of Democrats, particularly those on the far left in politics, academia, and the media. However, this schism does not carry over to the general public.

Researchers polled public opinion on a series of high-profile, controversial cases pending before the Supreme Court in 2021 and 2022, grouping respondents into Republicans, Democrats, or Independent/others. Then they compared the poll results to how the Court decided each case. For most of the cases, public opinion was sharply and often closely divided among the respondent groups. Overall, the Court’s decisions aligned with majority public opinion more often than they differed. The poll majority agreed with the Court in 13 of 24 cases; opinion was evenly split (less than 1 percent difference) in three other cases. In several cases where the Court departed from the poll majority the difference between the majority and minority was less than 5 percent. In two cases where the Court ruled counter to the poll majority its decisions were unanimous.

The study results reveal a major divergence not between the Court and the public as a whole but between segments of today’s highly polarized public. Republican and Democratic opinion rarely aligned. Republicans agreed with the Court in 20 of the 27 cases; Democrats agreed with the Court in only eight cases. Independent/others fell in between but were closer to Republicans. They agreed with the Court in 15 of 25 cases and split evenly in the other two.^[1]Curiously, the study’s authors portrayed the results as showing that the Supreme Court is “operating outside of American public opinion” and that its decisions  diverged from the views of … Continue reading

Even in the highest profile case where the Court bucked public opinion—Dobbs v. Jackson Women’s Health Association, which overruled Roe v. Wade—the public’s views are quite nuanced. The same polls that show large majorities of the public opposed to overruling Roe find that majorities still favor significant limits on the right to abortion, some of which are inconsistent with Roe. For example, contrary to Roe, majorities in several polls supported generally prohibiting abortion beyond 15 weeks of pregnancy. A Harvard-Harris poll taken shortly after Dobbs was decided found an even more striking internal contradiction. While a clear majority of respondents opposed Dobbs, only 25 percent believed the Supreme Court should set abortion standards. The other 75 percent said doing so was better left for Congress or state legislatures.^[2]See pages 40-42 of the poll results. Of course, this gets Roe and Dobbs precisely backwards.

Looking at other measures of public opinion, the most recent Gallup poll found that public approval of the Court declined significantly over the past two years.^[3]Public confidence is down as well for most other American institutions. The Court still earns much more credence than its critics in Congress and the media. However, the poll shows that the Court’s popularity ebbs and flows from year to year and that much of the churn reflects our political polarization. For example, while the Court’s favorability among Democrats fell to an all-time low this year, its popularity among Republicans rose dramatically. Independents were, again, in between—far less positive toward the Court than Republicans but far less negative than Democrats

The Court’s popularity likely reflects public reaction to a few high-profile decisions from each term. The key decision this year was Dobbs, which was quite unpopular. The tables may turn next year when the highest profile cases on the Court’s docket challenge the constitutionality of race-conscious admission practices by universities. Such practices are overwhelmingly opposed by the public.^[4]According to a Pew poll, 74 percent of the overall public opposes such practices as do majorities of Republicans, Democrats, whites, Blacks, Hispanics, and Asian-Americans. In any event, public disagreement with particular decisions doesn’t necessarily translate to condemnation of the Court as an institution. Although a strong majority (55-45) of respondents in the Harvard-Harris poll cited previously disapproved of the Dobbs decision, even stronger majorities still considered the Court “legitimate”(63-37) and opposed attacks on its legitimacy (59-41).^[5]See page 43 of the poll results.

To summarize, then, the Supreme Court is indeed very unpopular with Democrats and virtually anathema to the most liberal. However, it is not seriously out of sync with American public opinion as a whole or in any danger of losing all connection with the public. But what if it were?

Most thoughtful people would agree that the Court’s decisions (and those of lower courts) should not be driven by public opinion; otherwise, the judiciary would be reduced to nothing more than political actors. The Constitution grants the justices (and other federal judges) lifetime tenure. This was designed to ensure the independence of the judiciary not only from the political branches but also from the public. As Alexander Hamilton put it in Federalist No. 78, an independent judiciary is “an essential safeguard against the effects of occasional ill humors in the society.” It would be particularly dangerous for the Court to render decisions with a finger to the wind of public opinion in these troubled times. Ill-humored opinion influencers in academia and elsewhere are increasingly hostile to such core constitutional protections as freedom of speech, due process, and equal protection of the law.

No doubt the Court’s effectiveness would be severely jeopardized if it lost all credibility with the public. However, the best way for the Court to maintain its credibility is not to curry favor with political partisans or the general public. Rather, it is for the justices to ground their decisions in their best sense of the law without regard to the political consequences. Justice Kagan made this very point in her remarks referenced earlier:

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan, by not behaving as though we are just people with individual political or policy or social preferences.”  

The Court’s credibility would also be helped if political partisans and ideologues on both sides stopped undermining it. The Court’s detractors should sick to substantive critiques of its decisions and cease their bogus attacks on the “legitimacy” of the Court as well as their trashing of individual justices. The Senate should depoliticize the confirmation process and resurrect the merit-based approach it followed for many years. Specifically, it should reinstate the 60-vote threshold for confirming justices (and other judges) along with the principle that judicial nominees are entitled to confirmation if they are substantively and ethically qualified.