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Americans don’t trust the Supreme Court. That’s dangerous.

Unless the court wins back support, it could have a legitimacy crisis that endangers democracy

The Supreme Court’s standing among the American people is the lowest it’s been in the history of the survey research record.

In a poll conducted Sept. 1 through 16, Gallup found only 7 percent of Americans have a “great deal” of “trust and confidence” in the “judicial branch of government, headed by the U.S. Supreme Court.” That’s the lowest reading since Gallup began asking the question in the 1970s. The poll also showed that 58 percent of Americans “disapprove” of the job the Supreme Court is doing — the highest disapproval rating for the Court since Gallup began tracking in 2000.

With results like these, there’s a growing discussion about whether the Supreme Court is losing its legitimacy, including public comments from Justices Elena Kagan, Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr.

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The Gallup poll is measuring “specific support” for the Supreme Court

Questions about confidence and approval are part of a dimension of institutional evaluations that political scientists call specific support.” Specific support relates to performance satisfaction, whether an institution is making decisions people like.

For instance, people tend to say they support the Supreme Court when its decisions align with their own policy opinions. And so one reason Supreme Court approval is low is that many Americans believe the court is out of step with their political beliefs.

Recent research by political scientists Stephen Jessee, Neil Malhotra and Maya Sen finds that the court has lately become more conservative than most Americans on a range of issues. The most noticeable, of course, is Dobbs v. Jackson Women’s Health Organization, in which the court overruled Roe v. Wade, striking down women’s constitutional right to obtain an abortion. A poll commissioned by Jessee, Malhotra and Sen showed that more than 60 percent of Americans opposed overruling Roe and eliminating its protections for pre-viability abortions.

Similarly, in September, 42 percent of Americans told Gallup the Supreme Court is “too conservative.” That’s the highest “too conservative” reading since Gallup first asked about ideological agreement with the court in 1993. Only 18 percent said the court was “too liberal.”

Specific support for the Supreme Court is unusually low

Under these conditions, we would expect Supreme Court approval to decline among people who are more liberal but increase among people who are more conservative. That hasn’t happened as much as expected.

Last year, we published an analysis of Americans’ approval of the Supreme Court using Gallup survey data from 2001 through 2018.

We first found Supreme Court approval relates to whether Americans think the court’s decisions are “about right” or whether they are “too liberal” or “too conservative.” The more people think the court is out of line to the left or to the right, the lower the rate of approval.

However, we also found that overall Supreme Court approval was more closely related to perceptions the Supreme Court was “too liberal” than that it was “too conservative.”

This shows more conservative Americans more easily translated disagreements with the Supreme Court’s decisions into negative evaluations than liberals did. If this pattern continued, we would expect the court’s shift to the right wouldn’t hurt its public standing as much as a similar shift to the left.

Since we completed our published analysis, Gallup released data on Supreme Court approval and perceptions of its ideological performance for 2019 through 2022.

Using the statistical model we used with data from 2001 to 2018, we examined the new Gallup data to see whether Americans still translate ideological disagreements with the Supreme Court’s work into approval or disapproval in the same way.

The graph below shows the difference between the level of Supreme Court approval predicted by our model, on the one hand, and its actual Gallup approval rating for each year from 2001 through 2021. We call this the “approval gap.” Yellow segments show years that approval was higher than expected. Black segments show years that approval was lower than expected.

The Supreme Court approval gap, 2001-2022
Figure: Kathryn Haglin, Soren Jordan, Alison Merrill, and Joseph Daniel Ura
The Supreme Court approval gap, 2001-2022
Figure: Kathryn Haglin, Soren Jordan, Alison Merrill, and Joseph Daniel Ura

The model makes reasonably accurate predictions for 2019 and 2020. Supreme Court approval was about three points lower than expected for 2019, and it was one-and-a-half points higher than the 2020 forecast.

However, Supreme Court approval was over 16 points lower in 2021 than the model predicted. In 2022, Supreme Court approval was more than 8.5 points lower than the model predicted.

In the past two years, people who think the Supreme Court is “too conservative” have more aggressively translated disagreements with its decisions into negative evaluations of its job performance than they have in the past. Although the change decayed from 2021 to 2022, the court remains much less popular than it would have been if patterns we found through 2020 continued to prevail.

Why have so many Americans come to mistrust the Supreme Court? It’s not just the unpopular opinions.

So is the Supreme Court facing a legitimacy crisis?

Specific support is not the same as legitimacy. Legitimacy is nearer the notion of what political scientists call “diffuse support,” which political scientist David Easton described as the “reservoir of … goodwill that helps [citizens] to accept … outputs to which they are opposed.”

Low specific support is a liability for the Supreme Court, leaving the court and its decisions vulnerable to political attacks. However, low approval by itself does not mean the court’s legitimacy is failing.

But, in this case, the tightening relationship between ideological agreement and approval offers a chance to see diffuse support declining, as well. The court has been running a legitimacy deficit in recent years, burning more goodwill than it has built up. Although we might not yet call this a judicial legitimacy crisis, the Supreme Court certainly has a legitimacy problem.

Consider a 5-to-4 decision from this Supreme Court settling a disputed presidential election. Would it resolve the matter and steady the nation’s politics as it did in 2000’s Bush v. Gore, or would it agitate the conflict further? That’s not clear right now — which reveals cracks in the court’s legitimacy.

Biden’s court commission is worried about the Supreme Court’s ‘legitimacy.’ So what is ‘legitimacy,’ exactly?

So what would restore the court’s standing? There is some evidence that backlash to Supreme Court decisions abates over time. If the Supreme Court could tack closer to public opinion moving forward, it may find increasing approval and, eventually, a replenished reservoir of good feelings.

But if the Supreme Court’s decisions continue diverging sharply from public opinion on vital constitutional questions, that may eventually — perhaps even shortly — push judicial legitimacy past its breaking point.

Without a trusted referee, the United States becomes increasingly vulnerable to political disagreements spilling out of the nation’s political and legal systems and into the realm of force and violence.

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Kathryn Haglin is assistant professor of political science at the University of Minnesota at Duluth.

Soren Jordan is associate professor of political science at Auburn University.

Alison Merrill (@AlisonHMerrill) is assistant professor of political science at Susquehanna University.

Joseph Daniel Ura (@joeura) is professor of political science at Texas A&M University and Texas A&M University at Qatar.