This entry is cross-posted from Justia.com.
Last week, the Pew Research Center released results of new polling data showing the percentage of adult Americans who hold a favorable view of the Supreme Court (52%) is at a 25-year low. In the space below, I drill into the numbers a bit more deeply, and offer some speculative explanations for the diminishing public assessment of the Court.
Details of the Pew Survey
There are at least three noteworthy, and related, numerical trends imbedded in the Pew data about reduced respect for the Court. First, although a graph of attitudes does not depict a straight line-but instead features some zigzagging from year to year-a significant general downward drift has been taking place for over a decade. Between 2001 (when the approval rating was around 70%) and the present, the direction has been decidedly negative. In the seven periodic survey readings from early 2001 until the middle of 2006, the rating was in the 50s only once; in the seven survey readings since, it has been in the 50s four times, including in each of the last three readings since early 2009. So what we see is a descendent trend over the last 10 or 11 years, with a further pronounced drop-off over the last three years.
Second, and somewhat unexpectedly, today there are, as the survey press release says, "virtually no partisan differences in the views of the Supreme Court: 56% of Republicans, and 52% of both Democrats and independents rate the Supreme Court favorably." And it is really a drop in Republican approval numbers that has closed the partisan gap (and accounted for the low overall numbers); while favorability among Democrats has bounced around over the last decade, the decline in approval by Republicans has been particularly sharp and salient.
Third, and relatedly, the Court is no longer necessarily viewed more favorably by the party that controls the White House. During the Clinton years, Democrats viewed the Court more favorably than did Republicans. During the George W. Bush years, Republicans viewed the Court more favorably than did Democrats. (And this partisan correlation between respondent attitudes and control of the White House was also present during the Reagan and George H. W. Bush years.) But during the Obama years, neither Democrats nor Republicans have registered a consistently higher view of the Court.
What are we to make of all this? It's hard to know, since the survey asks only bottom-line questions about the degree of a respondent's favorable impression of the Court, and not questions about what the respondent thinks is driving the bottom-line impression. To be sure, part of the downhill slope may be explained by a dislike and distrust of government at all levels and in all forms, and perhaps also by an even broader angst about whether America and its economic, social and legal institutions are still worthy of our faith.
One Possible Partial Explanation for the Survey Results: The Perception That the Court is No Different, and No Better, Than (the Dreaded) Congress
But beyond this general distrust of powerful American institutions, I think there are a number of other factors at play over the last decade or so that bear on the observed trends. First, the Supreme Court has been thrust (or sometimes inserted itself) into particularly high-profile partisan disputes in a way that makes it hard for some observers to see how the Court is different from the more overtly partisan actors on Capitol Hill. Bush v. Gore (resolving the 2000 presidential election) is one important example, and the challenges to the Affordable Care Act (Obamacare) is another. The fact that all five Justices in the majority in Bush v. Gore were Republican appointees, and the possibility that the Obamacare cases might split 5-4 perfectly along Republican appointee/Democratic appointee lines (although I very much hope that doesn't come to pass), serve to reinforce the notion that the Court is no different from, and no more principled than, Congress. Even if Bush v. Gore didn't seem to do long-lasting harm to the Court's image in 2001 and 2002, when people today are reminded of it in connection with the Obamacare cases, the bad feelings that it generated come rushing back.
Of course, most of the Court's cases are not resolved 5-4 along partisan lines (and, indeed, a big percentage of Court rulings are unanimous). But the cases that (rightly) get enormous play in the media-the cases on which momentous things (like Presidential election results and the fate of the most significant statute to be passed in a generation) turn-do tend to break down 5-4 along these lines. It's hard for my constitutional law students, let alone non-lawyers, to believe me when I tell them that elegant ideas, lofty principles and doctrinal niceties matter when what folks observe is a very high percentage of monster cases getting resolved along partisan lines.
And this super-partisan perception may be more acute today than in recent decades, because currently all the Justices on the Court who were appointed by a Republican President are markedly more conservative than all the Justices who were appointed by Democrats. (That wasn't true when Justices White, Blackmun, Souter or Stevens were still on the Court.)
Interestingly enough, when the Court seems no less partisan and outcome-driven than Congress, even the "winners" in the Court in the overwhelming majority of big cases (Republicans) may come to disrespect the Court, since they so disrespect the Congress to which the Court is likened. (Much ink has been spilled on the historically abysmal approval ratings for Congress.)
A Second (Related) Partial Explanation for the Survey Results: The Court has Done Itself No Favors in the Confirmation Process
Related to this first observation is the way the Justices have come across publicly when they have gone through the Senate confirmation processes over the last decade. After 11 years of personnel stability, the Court received two new members (Chief Justice Roberts and Justice Alito) during the 2005-2006 Term, and two more (Justices Sotomayor and Kagan) since then. These confirmation processes included widely televised proceedings and featured some self-inflicted wounds by the nominees. For Chief Justice Roberts, it was his roundly denounced and overly simplistic baseball umpire metaphor, and for Justice Sotomayor, it was her having to deal with an ill-phrased reference in a past speech to the virtues of decisions made by a "wise Latina."
Perhaps more damaging than these inapt analogies or careless phrases, though, is the fact that the nominees have largely avoided answering most of the meaningful questions posed by Senators in the hearings-specific questions about specific cases in specific areas of the law. The record of recent confirmations shows innumerable instances of the Senate allowing the nominees simply not to answer because a question asks for specific views on specific matters. I have elsewhere written at length that such specific questions are necessary and proper to educate the Senate and the nation about whether a nominee ought to be confirmed, but when nominees bob and weave and end up coming off no different than the politicians who are asking the questions, or any other politician called to testify before a committee, the public can't help but lump everyone together for purposes of poxes on houses.
Some Other Reasons for the Survey Results, Having to Do with Republican Respondents in Particular
None of what I've said above fully and directly addresses the somewhat puzzling displeasure of Republican respondents in particular. After all, the Supreme Court over the last dozen years has exhibited a track record that is solidly conservative when compared to most eras of American history. When one thinks about the blockbuster rulings of recent years-Bush v. Gore, the Citizens United ruling invalidating campaign finance reform, the Heller ruling recognizing individual gun rights, the Van Orden v. Perry case permitting explicitly scriptural (10 Commandments) displays in public places-one has the general sense that the Supreme Court has for Republicans been somewhat like Burger King, a place where they have had it their way.
Why, then, the Republican negativity? I think the answer is at least twofold. First, it is human nature to remember losses, sometimes more than victories. And Republicans may feel frustrated by the decisions the Court has issued in some key social-issue-cases over the last decade-e.g., Lawrence v. Texas (upholding liberty to engage in homosexual activity), Grutter v. Bollinger (permitting race-based affirmative action), Stenberg v. Carhart (continuing to recognize abortion rights), and Roper v. Simmons (invalidating the death penalty for 17-year-old wrongdoers)-in which the five-member conservative majority didn't quite hold (because Justice O'Connor and/or Justice Kennedy went the other way.)
Second, victory is itself, of course, a relative concept. The reality may be that the Republican Party's movement to the Right has been faster and more consistent than even the Supreme Court's. So, for example, the Republican reaction to Heller may not have been "Hurray," so much as "What took so long?" and "Exactly how many gun regulations does this strike down?" As savvy veteran political scientists Thomas Mann and Norman Ornstein have recently put the point, albeit in stronger and more colorful terms than I would: "The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its . . . opposition." If Mann and Ornstein's characterization is remotely descriptive of the attitude held by even a significant minority of Republicans (and the percentage of Republicans in some states who say they believe the President is not a citizen, or not a Christian, suggests Mann and Ornstein do have a point), then no conservative victories at the Court are going to seem to be enough: Striking down Obamacare on reasoning that leaves Romneycare, or the Fed, for that matter, intact would result in a half-empty glass at best.
In the end, then, the most striking aspect of the Pew survey on the Court-the fall from Republican grace-may say as much about the Republican party today as it does about the Court.