The Supreme Court opens its 2022 term on Oct. 3 with its lowest public approval rating in modern history, which the justices are acutely aware of. One reason is that the court issued some highly controversial decisions last term — most notably, the Dobbs ruling that overturned Roe v. Wade.
But this is only part of the story.
Other important political officials have tarnished Americans’ opinions of the court, and public trust in democratic institutions and processes has dropped more generally as well.
That matters. With no independent enforcement power for their decisions, the justices rely on public respect for the court’s legitimacy. Yet they’re not necessarily in charge when trying to improve public approval for the court.
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A turn to the right
During its last term, the court took a sharp turn to the right and decided numerous high-profile cases by a 6-3 conservative majority.
Most notably, in Dobbs v. Jackson Women’s Health Organization Association, the court — for the first time in its history — took away a civil liberty in ruling that there was no constitutional right to abortion. In reversing the nearly 50-year-old precedent of Roe v. Wade, the conservative majority ignored the fact that more than 60 percent of Americans support access to abortion in all or nearly all circumstances, and wanted that right preserved.
Research shows that unpopular rulings can turn the public against the court — as Dobbs did.
Half of Americans support abortion on demand
Supreme Court succession process
But Senate Republicans also hurt public support for the court by openly politicizing Supreme Court vacancies over the past decade.
That began with the February 2016 death of conservative Justice Antonin Scalia. Led by Senate Majority Leader Mitch McConnell (R-Ky.), the Republican-controlled Senate refused to consider President Barack Obama’s nomination of moderate Merrick Garland to succeed him. McConnell argued that with only 269 days before the next presidential election, the Senate should wait until the country chose a new leader to consider a Supreme Court nominee. This year-long delay violated a long-standing tradition that every nominee not withdrawn by the president should get a hearing and a vote. As a result, a year later, newly elected President Donald Trump nominated conservative Neil M. Gorsuch, whom the Republican-led Senate promptly confirmed.
Only four years later, liberal Justice Ruth Bader Ginsburg died only 46 days before the 2020 presidential election. McConnell ignored his election-year rationale and led the Senate to confirm conservative Amy Coney Barrett as justice on a strict party-line vote, at a time when, in many states, early voting for the presidency was already underway.
Between these events, Justice Anthony M. Kennedy retired — which some news reports suggest came after a coordinated Trump administration persuasion campaign in 2018, asking that his preferred successor and former law clerk Brett M. Kavanaugh could take his seat. While Kavanaugh was confirmed, that came after a controversial confirmation battle that included charges that he had sexually assaulted a woman as a teenager.
The controversies over each of these nominations and confirmations probably helped decrease public support for the court in those years, as you can see in Gallup polling. Scholarship shows that Senate actions on Supreme Court nominations can shape public attitudes toward the court, even though justices have no control over how the Senate handles nominations.
Attacks from political actors and the media
In response to all this — both how the Senate has handled vacancies over the past six years and the court’s extremely conservative decisions last term — the president, members of Congress, and some in the media have been criticizing the court.
For instance, soon after the Dobbs decision, President Biden levied these harsh words: “We cannot allow an out-of-control Supreme Court, working in conjunction with the extremist elements of the Republican Party, to take away freedoms and our personal autonomy.”
Research finds that when the president, political candidates, or the media criticize the court, they can influence Americans to think poorly of the court, especially among those who disagree with its decisions.
Declining public trust in democratic institutions and processes
Scholarship demonstrates that public support for one political institution — like the Supreme Court — is linked to support for democratic institutions and processes more generally. Unfortunately for the court, these have been declining in recent years. For example, public approval of Congress has sunk substantially over the past 20 years. Only about 20 percent of the American public say they are very confident in the integrity of elections. And nearly 70 percent of Americans now believe that U.S. democracy is in crisis.
Why this matters
All of this is bad news for public views of the court — even though the justices themselves can’t influence much of the above, from Senate behavior to partisan criticism to how people view U.S. democracy.
In the Federalist Papers, Founding Father Alexander Hamilton wrote that, unlike Congress or the presidency, the Supreme Court lacks both a purse and a sword, meaning that it is unable to ensure — either by spending or by force — that Americans follow its rulings.
As a result, the justices must rely to a large extent on the goodwill of the American citizenry and the agreement of the other branches to see that its rulings are followed. If Americans do not have faith in the court, that reliance is on shaky ground.
We believe the justices can likely get back some public trust by moderating their decisions, if they wish. But they can’t affect many other factors influencing public approval of the court. Restoring public esteem will be difficult. Given that, the president and Congress are likely to keep proposing various changes to how the court works.
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Paul M. Collins Jr. is a professor of legal studies and political science at the University of Massachusetts Amherst and the co-author of “The President and the Supreme Court: Going Public on Judicial Decisions”” (Cambridge University Press, 2019).
Artemus Ward is professor of political science and faculty associate at the college of law at Northern Illinois University and the co-author of “The Puzzle of Unanimity: Consensus on the United States Supreme Court” (Stanford University Press, 2013).