As the Supreme Court begins hearing oral arguments this week, the justices are facing some bad news: Their job approval ratings are at an all-time low. Two polls released in September, one from Gallup and the other from Marquette University Law, found that more Americans disapprove of the court’s job performance than approve of it. Gallup found that only 40 percent of Americans approve, the lowest since it started keeping track in 2000. That’s two percentage points lower than its previous record in 2005, which came shortly after the court issued a highly unpopular eminent domain decision.
So should the justices — or the American people — worry about this disapproval as the court embarks on one of its most controversial terms in years?
How unusual is this dip in confidence?
Sure, the numbers look bad for the court. But they have looked bad before. After its approval dipped to 42 percent in 2005, it returned to near 60 percent in 2006. Its approval also looked dire during President Barack Obama’s second term in office, regularly hovering in the high 40s, but returned to the mid- to high 50s in the past several years.
The public doesn’t lose faith in the court even during times of controversy, such as when Senate Majority Leader Mitch McConnell (R-Ky.) in 2016 refused to hold a hearing on Merrick Garland’s nomination for the court for 293 days. A Pew poll conducted in June 2016, when it was clear that McConnell would block Garland’s nomination, found that 62 percent of Americans had a favorable view of the court. An ABC poll found similar levels of support after the Senate quickly confirmed Amy Coney Barrett a week before the 2020 election.
Conventional political science wisdom explains this by emphasizing the difference between short-term approval ratings and overall, longer-lasting feelings of trust people have for the court. Polls like those released last month reflect passing judgments about the court that usually indicate approval or disapproval with a recent decision — like the shadow-docket decision on the Texas abortion law — rather than about the court itself. Approval can dip after unpopular decisions or when prominent political leaders attack the court, but the public moves on and doesn’t abandon its gut belief that the institution is ultimately trustworthy. For instance, in the Marquette poll, 58 percent of respondents say they trust the court most out of the three branches, compared with just 25 percent for the executive and 16 percent for Congress.
If conventional wisdom is correct, these passing judgments may not have serious consequences for the court. People either forgive the justices for issuing an occasional ruling of which they disapprove, or they forget, and their feelings about the court return to an equilibrium of trust and goodwill — something political scientists call “diffuse support.” That’s important. Public respect keeps Congress and the president from either refusing to respect the Supreme Court’s edicts or enacting measures that could diminish the court’s authority.
Ultimately, if this conventional wisdom is accurate, the Supreme Court has nothing much to worry about. After all, in the Marquette poll, 61 percent of people said they believed that justices are mostly motivated by the law and not by politics. And that’s exactly what Justices Barrett and Stephen G. Breyer would have you believe from their recent comments about the court.
The news might be worse than conventional wisdom suggests
But recent scholarly accounts doubt this conventional wisdom. In a 2020 book, political scientists Brandon L. Bartels and Christopher D. Johnston argue that while approval numbers may rebound, the longer trend shows a marked decline in trust and approval of the court. In other words, the reservoir of goodwill is draining.
Moreover, Bartels and Johnston find that when the court is issuing decisions that individual Americans oppose politically, many of those individuals become more willing to support overhauling the court. This is why the justices are worried. When the court continually issues unpopular decisions, Americans start to seriously consider curtailing its authority. We can see that in the Marquette poll. When asked, 41 percent approved of curtailing the Supreme Court’s power of judicial review; 48 percent supported increasing the number of justices on the court; and 72 percent supported term limits for Supreme Court justices. Which might be why President Biden formed a commission to study ways to change the court, the first serious move to do so since President Franklin D. Roosevelt attempted it in 1937.
What could this mean for the upcoming term?
The court’s upcoming term is filled with such issues as abortion, gun control, pandemic restrictions, religious liberty, and immigration. In other words, the justices are walking into a field of political land mines. This highly publicized trust problem could affect how the justices approach those controversial cases.
In fact, some evidence suggests justices know when they are out of step with public opinion — and moderate their decisions to avoid backlash from the public and the elected branches.
One study finds that justices are less likely to invalidate federal statutes when members of Congress introduce more bills aimed at curbing the court’s power. Another finds the court is especially attentive to public opinion on issues for which justices need the executive or legislative branches to enforce its decisions. In the coming term, this might include pandemic restrictions, immigration and public funding for religious schools. And when they anticipate the public will disagree with their rulings, the justices write clearer, easier-to-read opinions.
Some of my own research suggests that justices respond to low public trust by voting against their political leanings to bring the court back into line with public opinion or at least attempting to avoid taking cases that will put their political attitudes into conflict with those of the public.
Of course, we can hardly expect this from all justices. Justice Clarence Thomas isn’t likely to alter his behavior to please the public. But a recent book found that other justices, including Chief Justice John G. Roberts Jr. and current swing Justice Brett M. Kavanaugh, are especially responsive to public sentiments when deciding how to vote.
Low public trust is unquestionably bad news for the court — especially for justices trying to pursue political goals without consequences. But it may be good news for a U.S. public hoping to see the court hew a little closer to mainstream public opinion.
Amanda Savage is an associate professor of political science at Loyola University Chicago.