Why Has Public Approval Of The Supreme Court Declined?
Public opinion of the Supreme Court has declined in recent years. But It's not because of anything the Court did.
A new CBS News/New York Times poll reports that public approval of the Supreme Court has slipped from the high levels it was once at in the past:
WASHINGTON — Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views, according to a poll conducted by The New York Times and CBS News.
Those findings are a fresh indication that the court’s standing with the public has slipped significantly in the past quarter-century, according to surveys conducted by several polling organizations. Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent.
The decline in the court’s standing may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular. But it also could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions.
“The results of this and other recent polls call into question two pieces of conventional wisdom,” said Lee Epstein, who teaches law and political science at the University of Southern California. One is that the court’s approval rating has been stable over the years, the other is that it has been consistently higher than that of the other branches of government, Professor Epstein said.
Either way, though, many Americans do not seem to expect the court to decide the case solely along constitutional lines. Just one in eight Americans said the justices decided cases based only on legal analysis.
“As far as the Supreme Court goes, judgments can’t be impersonal,” Vicki Bartlett, 57, an independent in Bremerton, Wash., said in a follow-up interview. “When you make judgments, it’s always personal. But the best hope is that they will do their job within the legal parameters.”
The public is skeptical about life tenure for the justices, with 60 percent agreeing with the statement that “appointing Supreme Court justices for life is a bad thing because it gives them too much power.” One-third agreed with a contrary statement, that life tenure for justices “is a good thing because it helps keep them independent from political pressures.”
Thirty-six percent of Americans said they disapproved of how the Supreme Court was handling its job, while 20 percent expressed no opinion. Though the court’s approval rating has always been above that of Congress — which is at 15 percent in the latest poll — it has occasionally dipped below that of the president.
A Gallup tracking poll conducted at the same time as the new survey by The Times and CBS News had President Obama’s approval rating at 47 percent, but about as many respondents disapproved of his performance.
The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.
These numbers are consistent with a Gallup poll that came out just this past October which put public approval of the Court at 46%, down a full 15 percentage points from 2009 when the same question elicited at 61% approval rating for the Court. Like the CBS/Times poll, the Gallup survey showed public opinion to be relatively consistent regardless of political ideology or party affiliation.
So, what’s the cause of the public’s decline in approval for the Court? The easy answer that many will jump to is that it’s related to the decisions that the Court has made, but it strikes me that this explanation doesn’t make sense, or at least that it’s not entirely complete. To see what I mean, take a look at the chart that Gallup published along with it’s October 2011 poll:
If it was public dissatisfaction with the Court’s work that was the cause of this dip in approval, then one would have expected to see a significant drop off in the aftermath of the decision in Bush v. Gore. Instead, public opinion remained relatively consistent until 2004-2005 when it began dropping, and indeed reached a point in 2005 where slightly more people disapproved of the Court than approved. Now, arguably, the poll may reflect the general increase in public confidence in government at all levels that we saw in the wake of the September 11th attacks. However, after that “rally round the flag” effect wore off and public distrust of other government institutions continued to return to previous levels, public confidence in the Court increased and indeed returned to the levels it was at immediately after September 11th. Until the past three years when it started declining again.
This suggests to me that public approval of the Court isn’t necessarily heavily influenced by the outcome of individual cases. Yes, cases like Bush v. Gore, Kelo v. City of New London, and Citizens United may be controversial and generate a lot of focused opposition from interested parties, but there really doesn’t seem to be any evidence that any single decision, or any group of decisions for that matter, has that much of an influence on how the public feels about the Court. Indeed, back in 2010 on the eve of Elena Kagan’s confirmation hearings, one poll found that few Americans could name a single Supreme Court case other than Roe v. Wade, and that they didn’t have a very good idea of what kind of work the Supreme Court actually does. Another poll a month earlier found that most Americans couldn’t name the members of the Court. It’s doubtful those numbers have changed significantly in the past two years. So, placing the blame for the decline on public opinion on what the Court has actually does doesn’t seem to make sense.
Instead, I think what we’re looking at here is something pretty close to what David Frum points out in his comment about the Times poll:
Why has confidence in the impartiality of the Supreme Court tumbled to 44%? Why not? Confidence in every American institution has corroded, even the military. When American society functions well, confidence rises, as it did in the 1980s and again in the mid-1990s. When society functions poorly, doubts spread. Nor are those doubts misplaced.
Frum has it mostly right, I believe. Especially over the past three years, public trust in government at all levels has declined significantly, largely in response to the economic downturn and the sense that government either isn’t or can’t do anything about it. Being part of the government, and the one most shielded from public view at that, it’s no surprise that the Supreme Court would suffer in the eyes of the public along with every one else.