The Supreme Court and Public Opinion, 2023

The Supreme Court has come under withering attack from the left as it produces decisions not to their liking. Rather than just critiquing these decisions on the merits, many of the Court’s detractors insist that the Court itself is somehow “illegitimate.” One common line of attack is that the Court is a radical, even imperial body that has gone rogue and is wholly disconnected from the American people. In this telling, the Court has lost public confidence because its decisions are fundamentally at odds with  public sentiment.

Like other assaults on the Court’s legitimacy,^[1]See, e.g., here, here, here, and here. this is a false narrative. In recent years, researchers compared public opinion on issues presented in selected high-profile cases before the Court with how the Court ultimately decided those issues. The results are telling. Unsurprisingly, there are some cases in which the Court’s decisions do run counter to majority public opinion. Also unsurprisingly, there is a major disconnect between many of the Court’s decisions and the views of leftist politicians and media. For the most part, however, the Court’s decisions are well within the mainstream of American public opinion. In fact, the Court is more in tune with the public than are its critics.

This year, the researchers surveyed public opinion on 13 prominent cases before the Court. The issues included race preferences in college admissions, environmental regulation, freedom of speech and religion, student loan forgiveness, and voting. As in past years, survey respondents were categorized as Democrats, Republicans, and Independents. Polling on each issue was compiled for overall majority opinion and for each of the respondent subgroups. The Court’s disposition of two cases did not match the survey questions, thereby leaving 11 cases for comparison.^[2]The Court did not reach the merits in one of these cases; in the other, the Court focused on an issue different from the one that was polled.

The results:

• • The Court’s decisions aligned with majority public opinion in 8 of 10 cases; public opinion was evenly split in the other case.
  • The Court’s decision in one of the two cases that ran counter to public opinion was unanimous. This suggests that the law was fairly clear and simply incompatible with the public’s preference.^[3]The Court held in this case that internet platforms could not be sued for failing to remove content supporting the Islamic State.
  • The only other decision that went against majority opinion dealt with EPA’s regulatory jurisdiction over wetlands.
  • Regarding the polling subgroups, the Court’s decisions aligned with a majority of Independent respondents in 9 of the 11 cases and with a majority of Republicans in 6 of 10 (with one even split). A majority of Democrats supported the Court’s decision in 6 of 11 cases.
  • The highest profile cases were the two dealing with race preferences in college admissions. The Court’s decision holding such preferences unconstitutional^[4]The two cases were combined into one decision. has been criticized bitterly by Democratic politicians and left-leaning media. In stark contrast, the decision was strongly supported by overall public opinion as well as all respondent subgroups–Republicans, Independents, and Democrats alike.

While the Supreme Court is not supposed to decide cases based on public opinion, a large and persistent gap between the Court’s decisions and American public sentiment would be cause for concern. However, the survey results demonstrate that no such gap exists. The same holds true for the survey results in previous years.^[5]See here for prior year survey results. Last year’s survey results were more mixed and the highest profile decision, Dobbs, was quite unpopular. Nevertheless, the Court’s decisions still aligned with majority public opinion more often than not.^[6]See here for more on last year’s survey.

The voting patterns of the justices in the surveyed cases also contradict the critics’ narrative of a six-justice conservative monolith. Ten of the 13 cases were split decisions, but only four of them featured all the conservative/Republican appointee justices on one side and the three liberal/Democratic appointees on the other.^[7]Indeed, only five out of all the cases decided by the Court this term involved a 6-3 split along ideological lines. See here for this and other statistics. The six conservatives voted as a bloc only in those four cases. Notably, the three liberals voted in lockstep twice as often as the conservatives–in eight of the ten cases. Neither case in which they diverged was particularly ideologically charged.

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As the survey data show, accusations that the Court is fundamentally out of step with the American public and has lost their confidence are wrong. These accusations are also ironic given the low public standing of the accusers. Alarmingly, public trust in most American institutions is on the decline; the Supreme Court is no exception. However, the Court still ranks higher in public confidence than the President, and far above Congress and the media.^[8]See here for the latest results from Gallup.