Month: September 2024

Many on the left brand the current Supreme Court an ideologically and even politically extreme “rogue” institution whose six-member conservative majority rides roughshod over the liberal minority and consistently produces decisions that are fundamentally at odds with the views of most Americans. All this is said to be reflected in the Court’s declining stature in the eyes of the public.

These characterizations don’t withstand objective analysis. In recent years, university researchers have selected “major” cases pending before the Court, as identified by media outlets and Court observers, and surveyed public opinion on the issues they present. Since the surveys are conducted before many cases are decided, the Court’s eventual decisions do not always track the issues polled.^[1]For example, the Court decides some cases on procedural grounds such as lack of standing without reaching the substantive issues, or it may recast the substantive issues in its decisions. But in most cases they do, and comparing the survey results with the Court’s decisions is quite revealing.

The results in past years^[2]See here and here. demonstrate that the Court is far from a conservative monolith and that more often than not its decisions align with majority public opinion. Indeed, the Court is more in tune with the public than its leftist critics. Also, the conservative justices vote in lock step less frequently than their liberal colleagues.  

This year’s survey results show the same things. The researchers surveyed public opinion on 16 selected major cases before the Supreme Court in its 2023-2024 term completed this June. In four of the cases, the Court’s ultimate decisions did not align with the issues polled.^[3]The Court did not reach the polled issue in three cases for procedural reasons. In the fourth case, Fischer v. United States, the issue polled—whether or not the events at the January 6 attack on … Continue reading That left twelve cases for comparison. The Court’s decisions were consistent with majority public opinion in eight of the twelve. Polling respondents who identified as Republican agreed with the Court 9-3; those who identified as Independent/Other agreed 8-4; and Democratic respondents split 6-6.   

Data for all 16 decisions selected for this term again refute the notion that the justices inevitably fall into one of two polarized camps. Six of the 16 cases were decided unanimously. Only half of the ten split decisions featured all the conservatives on one side and the liberals on the other.^[4]While the clean conservative-liberal split in half these non-unanimous cases may still seem high, the selected cases are by design particularly noteworthy and controversial. For all 62 cases decided … Continue reading The conservative justices differed among themselves in the other split cases. Liberal Justices Sotomayor and Kagan voted alike in all 16 cases; Justice Jackson differed from her liberal colleagues in only two cases. On the conservative side, only two justices, Roberts and Kavanaugh, voted together in all 16 cases.^[5]Statistics for the entire 2023-2024 term reenforce these voting patterns. Of the 62 cases in all, 25 resulted in unanimous decisions. The alignment of justices in the 37 non-unanimous decisions does … Continue reading

Given the foregoing statistics, why has public confidence in the Supreme Court declined? There probably are several reasons. For one thing, recent years have witnessed declining public confidence in almost all American institutions. The Court is not exempt from this; indeed the relentless (and unwarranted) attacks on its “legitimacy” and the integrity of individual justices surely have some impact. Also, a few recent very highly publicized decisions did go against the great weight of public opinion.^[6]One example from the cases selected this year is Trump v. United States, which held that presidents have broad immunity from criminal prosecution for their official acts. Another is the 2022 Dobbs … Continue reading But the main factor is the ever-increasing polarization of the public.   

The Court’s favorability ratings clearly reflect sharp partisan divides. According to the Pew Research Center, the Court’s overall rating is 47 to 51 percent unfavorable. However, 73 percent of Republican and Republican-leaning respondents rated the Court favorably while only 24 percent of Democratic and Democratic-leaning respondents did.  Gallup polling has similar findings with Republican respondents highly favorable (62%), Democrats highly unfavorable (17%), and independents in between (41%).

One of this year’s featured cases illustrates these divisions. In Trump v. Anderson, the Supreme Court unanimously overturned a state court decision finding Donald Trump ineligible to run for president by virtue of the Fourteenth Amendment’s ban on insurrectionists holding public office. Republicans overwhelmingly agreed with the Court (93 to 7%), Democrats overwhelmingly disagreed (84 to 16%), and independents agreed 54 to 46%.

Of course, the Supreme Court is not supposed to be a political body that decides cases based on public opinion. At the same time, there would be cause for concern if its decisions were persistently at odds with the views of most Americans. Fortunately, objective data demonstrate that this is not the case.

Notwithstanding the data, attacks on the Court are likely to continue based in part on the false narrative that it is hopelessly out of touch with the public. In assessing these attacks, it’s worth keeping in mind that the Court’s public standing still far exceeds that of its critics in the media (14 to 18% favorable) and Congress (8% favorable).  

 

Tuesday night’s “debate” between Donald Trump and Kamala Harris was a largely non-substantive event in the (thus far) largely non-substantive 2024 presidential election campaign. Nevertheless, it produced striking and important contrasts between the two candidates.

Trump is an all too familiar figure who has repeatedly demonstrated his unfitness for office. His first term was shambolic. In the wake of his 2020 election defeat, he engaged in conduct that was clearly impeachable and probably criminal. He is a con man, but not a very good one since he lacks the self-discipline even to fake normalcy. His campaign consists mainly of egocentric hyperbole, demagoguery, insults, and lies.

By contrast, Harris is essentially a stealth candidate. She was handed the Democratic nomination by default after President Biden was forced off the ticket. While lightly regarded–indeed rated by New York Times pundits as the weakest potential candidate–she was the only practical option at that late date. Since then, she has undergone a remarkable makeover courtesy of her party, which quickly closed ranks behind her, and supportive media. So far, Harris is mounting a surprisingly effective campaign built primarily on “good vibes.” Although the incumbent vice president, she is running as the change candidate. She has disavowed many of her previous policy positions but seems in no hurry to explain why or to stake out new ones.

The debate was hardly enlightening concerning where either candidate stands on the issues. Trump mostly ignored the debate moderators’ questions and spouted his usual nonsense. (He did the same in his debate with President Biden but drew less attention given the singular focus on Biden’s performance.) Harris sidestepped questions about her policy positions and why they had changed so dramatically, and she was not pressed very hard by the moderators to reveal more.  

With both candidates devoting far more time to attacking each other than to any policy subject, the debate provided few insights regarding how either of them would address the many serious challenges facing the nation. However, it was telling in terms of demeanor and temperament. From this perspective, the broad consensus across the political spectrum is that Harris was the clear “winner.” While she seemed overly scripted and robotic at times, she generally came across as self-controlled, coherent, and the far more “presidential” of the two. Trump was an angry hot mess who lost whatever discipline and composure he started with after about half an hour.

Observers of all political stripes marveled at how Harris was able repeatedly to throw Trump off balance and goad him into incoherence and unhinged rants (e.g., pet-eating migrants) by playing on his egomania. (See also Trump’s shoutout to Viktor Orban, who has stroked his massive ego.) This point has relevance beyond the debate and raises yet another concern over his fitness for office. If Trump can be manipulated so easily, imagine how vulnerable he (and our country) would be in his interactions as president with hostile foreign leaders and others seeking to get the better of him/us.

Trump supporters were quick to blame bias on the part of the moderators for his poor performance. This is no excuse; Trump clearly was his own worst enemy and basically self-destructed. At the same time, the moderators left themselves open to criticism by fact-checking only Trump. While his lies were more frequent and blatant, Harris served up her own share of false or highly misleading statements.

Even apart from the bias issue, I’d submit that the debaters and, more importantly, the public are better served when moderators stick to asking questions–as the CNN team did in the Trump-Biden debate–rather than injecting themselves into the debate by engaging in distracting arguments with the candidates. Post-debate settings provide ample and much better venues for debate critiques, including balanced and comprehensive fact-checking. If debate moderators feel the need to be more active, they can (and, in fact, should) follow up more aggressively to press for answers to the many questions they ask that the candidates routinely evade or ignore.