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.
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.
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.
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.