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Opinion

Objection! Americans' opinion of Supreme Court can't keep dropping

For the first time in nearly 30 years, the favorability rating of the US Supreme Court has fallen below 50 percent. Lack of public confidence undermines the legitimacy of the court's rulings. Chief Justice Roberts has yet to project an image of a court that stands above politics.

By Robert A. SchapiroOp-ed contributor / August 5, 2013

US Chief Justice John Roberts speaks to students and guests at the Robert H. Jackson Center in Jamestown, N.Y., May 17. Op-ed contributor Robert A. Schapiro writes: 'Ironically, the several attempts of the justices to duck controversial rulings may promote a perception of political maneuvering.'

Mark Mulville/AP

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Last month, the Pew Research Center reported that for the first time in its nearly 30 years of polling, the favorability rating of the US Supreme Court fell below 50 percent. Only 48 percent of the public has a positive view of the court. Perhaps more disturbing, the current level reflects a steady trend. The court’s approval fell below 60 percent in 2010 and has been sliding ever since.

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Public confidence in the judiciary provides a critical foundation for a society committed to the rule of law. As America’s unelected justices confront controversial questions, the legitimacy of their decisions depends on public support for the institution. The court must rely on other government officials, including elected leaders and law enforcement officers, to implement its rulings. Examples around the world suggest that obedience to judicial decisions may well depend on the level of respect that the courts enjoy. 

The drop in court approval occurs at a time when Americans have less respect for other institutions. But the immediate cause of the most recent dip in the high court's rating seems clear. In the wake of the court’s invalidation of a key provision of the Voting Rights Act, court approval among African-Americans fell to 44 percent in July from 61 percent in March. The longer term trend, however, suggests a deeper concern among the public than anger over one ruling.

When the court addresses contentious matters of social policy, its decisions will inevitably please some and anger others. A high favorability rating – as the court enjoyed in the 1980s and ’90s – suggests that people evaluate the institution separately from its latest ruling. For people to approve of a court, even while disagreeing with its decisions, they must view the court outside of a political lens, conceiving it as a non-political institution deciding cases based on principle.

Chief Justice John Roberts clearly understands the need for public approbation, and he seeks to project an image of a court that stands above politics. In his confirmation hearings he famously likened judges to baseball umpires. Last year’s decision in the Affordable Care Act case, or “Obamacare,” and this year’s rulings on affirmative action and same-sex marriage evidence ample efforts to avoid unnecessary political controversy. Why then has public approval fallen to historic lows?

The problem is that the rhetoric of the chief justice does not match the reality of much of the court’s record. The Roberts court has a habit of picking and choosing among hot-button issues, then deciding the cases along ideologically predictable lines. Both the selection of issues and their divisive resolutions signal a thoroughly political court in the eyes of many Americans.

Ironically, the several attempts of the justices to duck controversial rulings may promote a perception of political maneuvering. Chief Justice Roberts’s surprising performance in the Affordable Care Act decision in 2012 was widely perceived as an effort at political compromise. Although he rejected as overreaching the federal government’s main argument in support of constitutionality, he nevertheless provided the decisive vote to uphold the act as a permissible tax.

This year, the court evinced similar political savvy. In the affirmative action case, Fisher v. Texas, the court avoided a decisive ruling by finding that the lower court had failed to apply existing law properly. On that narrow basis, the court remanded the case for a do-over.

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