Public Opinion About The Supreme Court Nears New Lows

Thanks mostly to Republicans unhappy with the Court's decisions on same-sex marriage and the Affordable Care Act, public disapproval of the Supreme Court is nearing a new high.

Supreme Court Justices

With a new Supreme Court term set to start on Monday, Gallup is out with a new poll that disapproval of the nation’s highest legislative body is at is reaching a new high:

WASHINGTON, D.C. — Half of Americans (50%) disapprove of the job the U.S. Supreme Court is doing, while slightly fewer (45%) approve. Although the high court’s approval rating is similar to what it has been in recent years, the current disapproval rating is at a new high. Fewer Americans (5%) now have no opinion about the court.

Although the court’s image now tilts negative by five percentage points, that gap is still within the poll’s margin of error. This means Americans remain statistically split on the court’s image, as they have been in all but one poll since July 2012. Prior to that, majorities had approved of the court’s performance in almost all polls from 2000 to 2010, with two exceptions: an approval rating of 48% in June 2008, and a record low of 42% in June 2005 after the court ruled against Susette Kelo in an eminent domain case.

(…)

Americans remain divided on the job the U.S. Supreme Court is doing, but with disapproval reaching a new high, its image is now the closest it has come in the past 15 years to tilting negative. This may partly reflect the weakening of public confidence in government in recent years. But the court has also been caught in the middle of divisive policy battles that have largely undermined Republicans’ approval of the institution, while not helping it with political independents. And as the trend suggests, all of this could change based on the nature of the court’s decisions. Already, the court’s highest and lowest partisan approval scores in the past 15 years have come from Republicans.

As this chart shows, the public approval of the Court has been sinking steadily since roughly 2009, while disapproval has been rising:

Gallup SCOTUS One

When we break it down by party, we see that Democrats remain largely highly supportive of the Court while Republican support has varied sharply from year to year:

Gallup SCOTUS Two

Looking at the charts, it becomes very clear that in recent years public opinion about the Supreme Court has fluctuated largely based on what decisions the Justices were handing down and how they decided these cases. This becomes even more apparent when you look at the chart that shows the breakdown of public opinion by party. In 2012, for example, Republicans, who had generally had a high opinion of the Court along with Independents and Democrats, turned very negative on the Court to the point where only 29% of self-identified Republicans said they approved of the Court. The fact that this coincided with the Court’s decision upholding the constitutionality of the Affordable Care Act surely cannot be a coincidence. That case was one of the most high-profile cases to reach the Court in several years and involved both long-standing Constitutional issues regarding the extent of Federal power and a piece of legislation that had been the subject of bitter partisan battles for the better part of three years. That Republicans would turn negative on the Court when it handed down a result that they didn’t like shouldn’t be surprising. Similarly, in 2014 the Court handed down its next high profile PPACA case in the Hobby Lobby case where it struck down part of the HHS mandate regarding birth control coverage. The fact that Republicans reacted positively to this outcome while Democrats reacted negatively would seem to be just a logical result from their pre-existing political beliefs. Finally, in this past year we’ve seen the Supreme Court hand down several high profile decisions, most notably the ruling in Obergefell v. Hodges striking down bans on same-sex marriage and the ruling on King v. Burwell upholding the subsidies provided under the PPACA. The reactions to those decisions can be seen in the chart. Democrats, who were largely supportive of those decisions, now have a fairly high opinion of the Court, Republicans have a fairly low opinion, and Independents are somewhere in the middle. This is consistent with other polling that has taken place in the past several months that has shown that public opinion about the Court has declined largely thanks to Republicans notwithstanding the fact that most Americans support the Court’s decision in Obergefell. As I’ve noted before — see here and here — public opinion regarding the Supreme Court, then, is largely a reflection of how the public feels about the direction the Court has moved in a given point in time. In that sense, it’s less a comment on the Court as an institution than it is a reaction to the most immediate news about what the Court has done.

These poll numbers, of course, come in the wake of a summer in which several of the Republican candidates for President have been denouncing the Court in a manner that can only be described as radical. People such as former Governor Mike Huckabee and Texas Senator Ted Cruz, for example, denounced the ruling and the Court, with both men going so far as to say that the Court’s ruling can be ignored and Cruz suggesting that Supreme Court Justices should be subject to popular election. When Rowan County, Kentucky Clerk Kim Davis became the center of a public controversy in August for her refusal to issue marriage licenses to same-sex couples notwithstanding the law and the orders of a Federal District Court Judge, many Republican candidates rallied around her in what was obviously an attempt to pander to the religious conservative wing of the Republican Party.  Given all of this, it isn’t surprising to see that Republican voters have turned negative on the Court in recent years, and the fact that the Court has if anything become more of an object of partisan rancor only seems to guarantee that these passions will continue to be inflamed by opportunistic politicians and that it will fluctuate based on whether or not certain voters like what the Justices are saying at any given time.

Ideally, of course, this isn’t how the public ought to react to the Supreme Court because the Justices don’t exist to bend to the will of public opinion. The law is supposed to be, and generally is, separate and apart from the vicissitudes of public opinion. Instead, Judges and Justices are meant to focus on the facts of the cases before them, and the relevant law, and rule accordingly. Obviously, this isn’t a pure process because Judges are human beings like everyone else and, like everyone else, they bring their own opinions, prejudices, and world views into every case they decide. Additionally, they frequently deal with issues where the “correct” answer in terms of what the law is or ought to be isn’t readily apparent, which is why dissent and disagreement have a long and valuable tradition in American law. For better or worse, though, the Court has in some ways become just as politicized as the rest of America. Many people put the start of this process at the Court’s decision in Roe v. Wade, which set in motion a whole host of political movements that are still part of American politics, but it actually started much earlier than that. Twenty years before Roe, the Supreme Court began handing down the decisions that slowly but surely began chipping away at government-sanctioned racial discrimination in Brown v. Board of Education.  Southern states responded to this argument by raising old discredited doctrines such as nullification and interposition, which basically argued that Southern states were free to ignore Supreme Court rulings they disagreed with. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional. Ever since then, though, the Supreme Court has become more and more of an institution where people base their opinions on whether or not they agree with the decisions  or not. That’s not entirely healthy for the Rule Of Law, but it seems to be the world we live in now.

FILED UNDER: Campaign 2016, Law and the Courts, Public Opinion Polls, US Politics,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. ernieyeball says:

    Thanks mostly to Republicans unhappy with the Court’s decisions on same-sex marriage and the Affordable Care Act, public disapproval of the Supreme Court is nearing a new high.

    Thanks mostly to everything Republicans whine about, my opinion of the GOP has reached a new low!

  2. Tony W says:

    There’s a pretty good chance that the ridiculous opinion in Citizens United might have something to do with the low rating too. After all, what could possibly go wrong introducing unlimited money into our elections?

    Point is, the Koch brothers told their Republican employees in Congress and the media to support that decision – yet we see a “what have you done for me lately” attitude from whiny conservatives.

  3. Slugger says:

    A 45% approval rate is a lot higher than the President (38%) and a whole lot higher than Congress which is around 18%. Actually, when I think about it the public approval rate of the SCOTUS should be low since it is their job to stand up for principles and not to be a weathervane of public opinion. Yes, the public doesn’t like umpires and referees; yes, people would prefer that the rules be used to help the home team. A dispassionate rule enforcer gets booed and should regard the disdain as a badge of honor. Racial segregation and police questioning without counsel were supported by the general public. Fifth amendment protections would disappear in a plebiscite. It is the court’s duty to be unpopular.

  4. Tillman says:

    Obviously the court was corrupted by the Kenyan Muslim hence why the Court must burn with the rest of the government.

    Or have Justices appointed by a restored conservative successor to Reagan, or whatever. I’m presuming no one counts Bush 43.

  5. Grewgills says:

    @Slugger:

    A 45% approval rate is a lot higher than the President (38%) and a whole lot higher than Congress which is around 18%.

    Where are you getting your numbers? The RCP average for Obama is about 46%,
    The RCP average for congress is at about 15%, so you were a lot closer there, though still wrong.

  6. Pinky says:

    @Grewgills:

    though still wrong

    15% is no more right or wrong than 18%, in that it’s survey data about a public impression.

  7. Grewgills says:

    Well Pinky, if you want to be pedantic about it then; still a bit inaccurate, but not as wildly inaccurate. The point still stands, Slugger was pulling numbers out of his a$$. His number for Obama was off by almost 8% and was 2% lower than RCP has had him at his absolute lowest in the past 2 years.

  8. Dave Schuler says:

    No man is a hero to his valet.

  9. Pinky says:

    @Grewgills: Pedantic, says the man questioning stats because one source reported an average that was different than another source. He said “around” one number, you said “about” another, and you’re giving him a hard time about it. Silly.

  10. DrDaveT says:

    Mark me down as “not a Republican, not impressed with the Court”. I’m relieved as hell that they didn’t screw up Obergefell, but pissed as hell at Citizens United and Hobby Lobby, which will be suppurating wounds in American jurisprudence and polity for years to come.

    Mostly, I have no confidence in either this Court’s competence or its wisdom — it does not consistently either get the law right nor do the right thing. At which point, good outcomes are pure luck.

  11. MBunge says:

    Why shouldn’t the Supreme Court be held in disdain? We’ve seen two decisions in the last 20 years (Bush v. Gore and Citizens United) that were about as bad and baldly political as you can get. One of the Justices (Scalia) has also pretty much given up on being a serious public intellectual to embrace cranky-old-manhood. And the Court came thisclose to creating a national political and public policy disaster but undoing healthcare reform on fairly flimsy pretenses.

    Mike

  12. Grewgills says:

    @Pinky:
    His supposed point was that the Supreme Court with an approval of 45% was much more popular than Obama at 38%. There is no source that has Obama near 38%. 38% is lower than his lowest point in the past 2 years. Slugger was pulling numbers out of his a$$ to claim that Obama was much less popular than the Supreme Court, when they are pretty much the same. Why are you defending the numbers he pulled out of his a$$?

  13. Kylopod says:

    I’m more than a bit disappointed by the strong Democratic approval of the current Court, which is by far the most conservative Court in decades. This is the Court that gave us Citizens United and Hobby Lobby, which ruled for an individual right to firearms and which struck down portions of the Voting Rights Act.

    Of course the right depicts Roberts as a liberal Marxist RINO, their all-inclusive label whenever things don’t go exactly their way. But I absolutely do not give Roberts “credit” for the Obamacare decisions. In fact, everyone seems to forget he actually put a dent in the law by striking down the universal Medicaid provision (which was a far more significant part of the law than most people realize). The arguments involving Gruber’s remarks were so absurd they should have barely dignified a response, and the legal arguments against the individual mandate were pretty much unheard of from the time Heritage Foundation first dreamed up the policy in the ’80s until Obama’s presidency. You don’t get a medal for affirming the obvious.

    This poll suggests, above all, that most voters have about the attention span of a fly. Both the Dems and the Repubs in this poll are basically reacting to the Obamacare and SSM decisions this year, and forgetting everything that came before. If Dems are satisfied with this Court, that pretty much kills the idea that the Hillary campaign can get Dems to the polls by reminding them how important the issue of the next president’s appointees is. It seems that most Dems have no idea what’s at stake, while Repubs don’t appreciate how much the Court is on their side.

  14. al-Ameda says:

    Do they (Gallup) ever poll people on what people’s opinion of the public is? I’m interested because my opinion of the public is pretty damned low.

    I loved chart 3 – Approval of the Supreme Court by party affiliation – because it gets to the heart of the aggregate current low level of approval, which is that Republicans are driving the ratings down because of their unhappiness with decisions on ACA, to be sure, Democrats hated Citizens United, but they seem to get over it quickly.

  15. Pinky says:

    @al-Ameda: I suspect that Democrats get over their anger with the Court more quickly because they expect it to be political while Republicans expect it to be reasonable. The Democrats have used the courts since the 1930’s to implement policies that the public didn’t approve of, so they’re more comfortable with its whims. Republicans expect the Court to live up to its Constitutional standards, so an odd ruling does more psychological damage.

  16. James Pearce says:

    @Pinky:

    I suspect that Democrats get over their anger with the Court more quickly because they expect it to be political while Republicans expect it to be reasonable.

    I don’t know about that. We’ll be hearing about Citizens United from lefties for a while…

    On the right, you can’t help but detect the whiff of betrayal, as if John Roberts’s great crime was to be reasonable when he really should have been thumbing the scale. “We didn’t send you Obamacare and gay marriage so you could sign off on it. Did you forgot who you’re working for?”

    Republicans expect the Court to live up to its Constitutional standards? Nah, it’s much simpler than that. Republicans expect the court to rule in their favor.

  17. Ron Beasley says:

    It’s Judaical activism when you don’t agree with the decision.

  18. Ron Beasley says:

    It’s Judaical activism when you don’t agree with the decision.

  19. Tillman says:

    Anyone know what the second bit of the one-two punch at the beginning was? Republican approval of the Court was highest after Bush v. Gore, certainly not a case decided on Constitutional principle, but went down within a year.

  20. Kylopod says:

    @Pinky:

    The Democrats have used the courts since the 1930’s to implement policies that the public didn’t approve of

    Yeah, especially that Democrat, Earl Warren.

  21. michael reynolds says:

    @Pinky:

    Republicans expect the Court to live up to its Constitutional standards,

    You really don’t do self-awareness at all, do you?

  22. grumpy realist says:

    @Pinky: You know, I really want to pat you on your head for that level of cluelessness. Republicans expect SCOTUS to be “reasonable” while Democrats expect SCOTUS to be “political”?

    Have you even ever READ any SCOTUS decisions?

    (Incidentally, Doug, I’m not that interested in what the average clueless public thinks about SCOTUS. They’re always whining because they think the decisions should be made in their direction. What would be interesting is what lawyers think about SCOTUS and whether that differs according to political orientation.)

    My view of what SCOTUS rules is that it is invariably swinging back and forth between an activist role and a passive role. Some of the judges think that SCOTUS should take a strict don’t-expand-the-law-beyond-the-four-corners-we-have-already-no-matter-now-analogous-it-is and think that if there’s any problem Congress should pass legislation to fix the problem. The other set are fed up with waiting for Congress to fix the problem (or think the analogous argument holds) and are quite willing to go ahead. Who wants what depends on the case, the topic, and how much SCOTUS has already extended the law. And sometimes they flip their opinions during the writings of the arguments (which is what happened in Chakrabortty.)

  23. al-Ameda says:

    @Pinky:

    I suspect that Democrats get over their anger with the Court more quickly because they expect it to be political while Republicans expect it to be reasonable. The Democrats have used the courts since the 1930’s to implement policies that the public didn’t approve of, so they’re more comfortable with its whims.

    LOL! Funniest line of the thread.
    You do realize that Ted Cruz very recently referred to Justice Roberts (essentially) as a RINO.

  24. DrDaveT says:

    @Pinky:

    I suspect that Democrats get over their anger with the Court more quickly because they expect it to be political while Republicans expect it to be reasonable.

    I had to laugh out loud because I would have expected to see a comment along those lines, but exactly the other way around.

    Let me phrase it differently — my take is that Democrats are angrier over decisions that could have gone either way but the Court decided to rule in a way that makes America less democratic or equal. Republicans are angrier over any decision that messes with traditional (white, male, Christian, wealthy, gun-owning) privilege. Unless the Second Amendment is involved, Republican commentary seldom discusses the actual legal basis. Ditto for Democrats and the First Amendment.

  25. Dave Schuler says:

    Doubling down on my comment above, can anyone think of any institution that has higher repute now than it did 20 years ago? Physicians, journalists, clergymen, etc. all have fallen in public regard. IMO being inundated with information and low approval ratings are a matched set.

  26. ernieyeball says:

    @Pinky:..The Democrats have used the courts since the 1930’s to implement policies that the public didn’t approve of,..

    Yes Pink. And we are so glad they did!
    See: Gebardi v. United States 287 U.S. 112 (1932)

    Primary Holding
    A woman is not liable for conspiracy to violate the Mann Act, or for a violation of the law, if she agrees to be transported across state lines for an immoral purpose.
    Facts
    Gebardi took his future wife to another state before their marriage so that they could have sexual intercourse. They made these trips several times, and his future wife voluntarily consented to going on the trips in full knowledge of their purpose. He bought railroad tickets for both of them for at least one of the trips. Both Gebardi and his wife were convicted of conspiracy to transport a woman across state lines for an immoral purpose, which was prohibited under the federal Mann Act. Nobody else was named as a participant in the conspiracy.

    https://supreme.justia.com/cases/federal/us/287/112/
    (Annotation Tab)

  27. Just 'nutha ig'rant cracker says:

    @Kylopod: Your not being fair to flies. Their attention span is much longer.

  28. Pinky says:

    @Dave Schuler:

    Doubling down on my comment above, can anyone think of any institution that has higher repute now than it did 20 years ago?

    Comic books, video games, cable TV.

  29. Just 'nutha ig'rant cracker says:

    @Pinky: Republicans expect the Court to live up to its Constitutional standardsmake the laws the way Republicans want them, so an odd ruling does more psychological damagehurts their ego more.

    no charge for the repair

  30. Just 'nutha ig'rant cracker says:

    @Pinky: Cable TV? Not where I live.

  31. Slugger says:

    @Grewgills: You are completely correct. I didn’t check the numbers but pulled them out of the deep recesses of my mind which frequently is located in my trousers. The reason I didn’t check them is because I don’t think that they mean much. I think that the SCOTUS has been unpopular during my lifetime often (not always) for doing the right thing like on civil rights and fifth amendment issues. The disapproval of the public can mean that the public is wrong.
    BTW, my disinterest in polling issues also stems from the rankings that Congress gets. Their scores are abysmal; yet it is almost impossible for an incumbent to get ousted. My conclusion: polling means squat.

  32. Davebo says:

    Lifetime appointment bitches! Live with it! Or don’t if that suits you.

  33. Pinky says:

    @DrDaveT:

    I had to laugh out loud because I would have expected to see a comment along those lines, but exactly the other way around.

    Yeah, these threads tend to be predictable. Let me ask you, since I think you’re generally on the left side of things: why do you read them? I sometimes ask myself that question, and one of the strongest justifications I have is that it’s good to keep oneself exposed to people who think differently than one does. What do you get out of them?

  34. DrDaveT says:

    @Pinky:

    Let me ask you, since I think you’re generally on the left side of things: why do you read them?

    I started a year or two ago because the bloggers mostly thought of themselves as conservatives (or libertarians), the commenters included quite a few liberals and progressives, and actual discussion of issues and arguments occurred.

    Lately, not as much.

    I’ve picked up some useful legal references, and some useful economic references. I’ve learned a lot about modern conservative thought, and a bit about modern conservative trolls, and way more than I wanted to know about the Fox News echo chamber (of which I had been blissfully unaware).

    And there are still people who contribute thoughtfully. Not as much or as consistently as before, on either side of the arguments, but enough to keep me coming back in hopes of a real discussion. If I can’t find it here, I’m not sure where I would look — pretty much every other venue I know of is wholly overrun by extremists of one flavor.

  35. DrDaveT says:

    @Pinky:

    Comic books, video games, cable TV.

    Agreed that all three have better reputations now than in the past, but I’m not sure I’d call any of them “institutions”.

    Go back 40 years, and one institution whose reputation in the general public has changed radically is the military.

  36. gVOR08 says:

    @Pinky:

    Republicans expect it (SCOTUS) to be reasonable.

    I don’t think I’ve properly appreciated you wry, ironic sense of humor. That’s really funny.

  37. grumpy realist says:

    @Slugger: Yes, it’s always “those other guys are horribly corrupt evil SOBs, but MY guy is OK!”

    No wonder politicians keep getting reelected, no matter how much we yap to pollsters. Because when we get in the voting booth we go for the familiar.

  38. grumpy realist says:

    My goodness, Trump has basically admitted that he’s no more than the ghastly car wreck people are gawking at as they drive past on the highway.

    Somehow, I think we’ll survive if he drops out.

  39. Tyrell says:

    @Kylopod: Those who disapprove of the Supreme Court are not just people who listen to talk radio or hang out at the local garage, fast food place, or barber shop. Some of them actually can read, and read such articles as these:
    National Review: “Let’s Drop the Charade – Supreme Court Is a Political Branch”
    Washington Post: “John Roberts Overthrows the Constitution”
    Freedom Institute and Huffington Post: “Supreme Court Justice Talks Candidly About Re-Writing the Constitution”
    Harvard Law: “Active Avoidance” (Neal Ratyal/Thomas Schmidt)
    ACLJ: “Supreme Court Again Re-Writes Obama Care” (Sekulov)
    Albert Mohler: “Everything Has Changed, and Nothing Has Changed” (almohler.com)

    These are thoughtful, fair articles. They are not from some extreme left or right wing think tank or obscure, wild haired websites. The opinions are well thought out and reasoned.

  40. DrDaveT says:

    @Tyrell: Best Tyrell reply ever. Nicely done.

  41. Blue Galangal says:

    @DrDaveT: I’d also add to your thoughtful response – with which I generally agree – that there is often dialogue here between conservatives and liberals and that’s something that is lacking. Yes, there are those who hew to one philosophy and repeat things heard elsewhere, but there’s also dialogue.

    Before 538 went to the NYT, comment threads there could be a lively and interesting exchange of ideas between people of different political stripes. I read Balloon Juice for the content, not the comments; if I want to get a hefty dose of entertaining trolling, almost any ThinkProgress thread about Planned Parenthood is a great place to lurk. But for the exchange of ideas and dialogue, OTB is one of the best places I’ve found for commenters. (Plus the range of topics, as you note; I’ve got a list now of WWI history reading stacked up in my pile.)