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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.

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The same-sex marriage cases represented an even greater tour de force. Normally, the court will only issue a decision when a case is vigorously contested by the two sides. Both same-sex marriage cases violated this principle. In United States v. Windsor, the federal government agreed with the challengers that the federal Defense of Marriage Act was unconstitutional. Similarly, in Hollingsworth v. Perry, the state of California refused to defend the constitutionality of Proposition 8, banning same-sex marriage.

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While sharing procedural difficulties, the two cases differed significantly in their potential impact. Windsor concerned only the federal government’s respect for state definitions of marriage. The Proposition 8 case, by contrast, raised the possibility of mandating same-sex marriage throughout the United States. The court decided Windsor, but dismissed the potentially broader Proposition 8 case.

Many commentators applauded the court’s artful dodges. However, it may be that the public does not appreciate this kind of shrewd calculation. Congress and the president are experts at ducking difficult questions. Perhaps the public expects that a non-political institution will march ahead to decide tough issues, rather than tiptoeing around a political minefield.

When the court does get around to addressing controversial questions, its judgments follow predictable patterns. This past term was typical. A full 70 percent of the 5-4 rulings reflected the familiar divisions, with Justice Anthony Kennedy joining either the liberal or the conservative wing of the court to provide the margin of victory.

The existence of relatively cohesive ideological blocs is not novel, but since the retirement of Justice John Paul Stevens in 2010, the ideological divisions align precisely with the party of the appointing presidents.

In the not-too-distant past, some Republican appointees, such as Justice Stevens, Justice Harry Blackmun, and Justice David Souter regularly supported more liberal outcomes. Justice Byron White, appointed by Democratic President John F. Kennedy, sometimes voted for more conservative results. Now, as Democratic appointees regularly vote for Democratic positions and Republican appointees regularly vote for Republican positions, the inference of partisanship may prove difficult to overcome.

If a court loses its credibility as a non-political institution, then its favorability will simply rise or fall with the popularity of the latest ruling. Controversial decisions are unlikely to please more than half the people. For the court to rise much above a 50 percent approval rating, it will likely have to shake its political image. That may be Chief Justice Roberts’s goal, but he has yet to achieve it.

Robert A. Schapiro is dean and Asa Griggs Candler professor of law at Emory University School of Law.

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