In her iconic rendition of “Proud Mary,” Tina Turner begins with a sultry hiss:
Sometimes we like to do things nice and easy. But we never like to do things completely nice and easy, because sometimes we like to do things nice…and rough!
The same may be said when it comes to analyzing public survey data about the Supreme Court (to strengthen the metaphor, you could envision this law professor at his keyboard in a sequined cocktail dress, but I don’t recommend it).
There are certain “easy” things one can say about the numbers, and I will turn to them first. Then there are deeper implications, which is where the going gets rough, and I will discuss those second.
First, the easy bit.
Democrats and Republicans take turns yelling
The Pew Research Center has been conducting surveys on the Supreme Court for over 30 years. Their most recent survey from 2015
shows that 48 percent of the public holds a favorable opinion of the Supreme Court, as compared to 43 percent, who report a negative opinion.
But before you conservatives get too hot and bothered, note this: as recently as 2010, the shoe was on the other foot, when declining public support for the Supreme Court was accelerated by liberals, who then viewed the court less favorably than conservatives.
None of this is especially surprising.
First, 70 percent of us, according to Pew, think that politics influences the choices justices make. And social science data corroborate the public’s view, by showing a strong correlation between a justice’s ideological predilections and the decisions he or she makes.
Second, 56 percent believe that that the justices “should consider what most Americans think” when they decide cases.
It’s true that canons of judicial ethics direct judges not to be influenced by “public clamor” when deciding cases. And indeed many college-educated folk share this view.
But when a significant segment of the public thinks that the justices make political choices and that the public’s political preferences should influence those choices, it follows that the public will view the court more or less favorably depending on whether the court implements the public’s political preferences.
All of which may have little to do with the legal questions the court is deciding.
For example, whether the public thought favorably of the Supreme Court after its decision to uphold the Affordable Care Act case may have more to do with whether the public liked Obamacare than whether it thought the legislation exceeded Congress’s constitutional authority to regulate commerce or raise taxes.
And so, Republicans and Democrats take turns yelling at the court, depending on whose ox the court has gored lately.
So far, so easy.
But here is where the sledding gets rougher.
Long-term loss in popular support
Over the past 30 years, the Pew numbers show that favorable views of the Supreme Court have declined from 64 percent in 1985 to 48 percent in 2015, while unfavorable opinions have increased from 28 percent to 43 percent.
It’s not as simple as saying that the Supreme Court has gotten too liberal or too conservative, because liberals and conservatives have both contributed to the long, slow decline in popular support for the Supreme Court.
Part of the answer may be that the public is simply fed up with the federal government generally, which includes the Supreme Court for reasons having nothing to do with the court specifically.
But something more is at work here, which has politicized the court in new and different ways. Just check out this political cartoon where a tree that has lost its leaves reveals twigs spelling out the faults of each of the government’s three branches. “Incompetence” is the legislative branch’s problem and “secrecy” the executive’s.
And the judiciary’s? “Politics.” But what does that mean?
The impact of the partisan divide
It is not just that the court or its justices have acquired an ideological bent – we’ve known that for a long time, and political scientists Greg Caldeira and James Gibson have shown that the public does not second-guess the court’s legitimacy on that basis.
In a new book, Courting Peril: The Political Transformation of the American Judiciary, I argue that a combination of events generations in the making is turning the American judiciary into a much more political place, in which the public is increasingly skeptical of judges and their motives.
This began in earnest in 1987 with the Senate’s rejection of Robert Bork’s nomination to the Supreme Court. It was a nomination process so contentious that it inspired a new verb, “to bork,” defined by the Oxford English Dictionary as:
To obstruct (someone, especially a candidate for public office) through systematic defamation or vilification.
The new politics of judicial appointments have transformed judicial selection into an ideological battleground that gets amplified in the public debate.
The traditional media now explain Supreme Court decisions with reference to the court’s ideological voting blocs; cable news stations such as Fox and CNBC report on the Supreme Court from decidedly partisan perspectives; while a new breed of citizen journalists offer a critique of the courts in a host of online venues that are unconstrained by the norms of traditional journalism.
At the same time, legislative oversight of such seemingly benign subjects as court practice, procedure, structure, jurisdiction and budgets have become more and more politically charged. For example, with the court’s ruling on Obamacare impending, ideologically aligned interest groups clamored
for the disqualification of both Justices Kagan and Thomas.
The public’s confidence in the courts does not turn on pretending that sterile interpretations of “law” are all that matter to justices or that ideology plays no part in the choices justices make.
But the public does expect judges to be fair and to take law seriously. When people start to think that judges are nothing more than political hacks in robes, trouble follows.
It’s not surprising, therefore, that Caldeira and Gibson have found that the court’s legitimacy suffers when Supreme Court appointments proceedings devolve into partisan warfare, in which each side accuses the other of appointing ideological extremists. This creates the perception that the judiciary is peopled with zealots who are indifferent to law and justice.
I don’t mean to suggest that the court itself shouldn’t bear some of the responsibility for declining public support. But it is hard for the public to feel good about its Supreme Court in a partisan climate this polarized.
After Justice Scalia’s death, for example, the Senate preemptively declared the president’s nominee unfit to serve before he or she was even named, on the assumption that working together to find an honorable, politically acceptable replacement was impossible.
Lost in this partisan fecal fest is an important truth: capable, qualified and honorable judges are not unicorns. They exist – and they are no less capable, qualified and honorable, simply because they do not always agree with each other, with us, or with the politicians who appointed them.