With a new Supreme Court term set to start on Monday, Gallup is out with a new poll that disapproval of the nation’s highest legislative body is at is reaching a new high:
WASHINGTON, D.C. — Half of Americans (50%) disapprove of the job the U.S. Supreme Court is doing, while slightly fewer (45%) approve. Although the high court’s approval rating is similar to what it has been in recent years, the current disapproval rating is at a new high. Fewer Americans (5%) now have no opinion about the court.
Although the court’s image now tilts negative by five percentage points, that gap is still within the poll’s margin of error. This means Americans remain statistically split on the court’s image, as they have been in all but one poll since July 2012. Prior to that, majorities had approved of the court’s performance in almost all polls from 2000 to 2010, with two exceptions: an approval rating of 48% in June 2008, and a record low of 42% in June 2005 after the court ruled against Susette Kelo in an eminent domain case.
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Americans remain divided on the job the U.S. Supreme Court is doing, but with disapproval reaching a new high, its image is now the closest it has come in the past 15 years to tilting negative. This may partly reflect the weakening of public confidence in government in recent years. But the court has also been caught in the middle of divisive policy battles that have largely undermined Republicans’ approval of the institution, while not helping it with political independents. And as the trend suggests, all of this could change based on the nature of the court’s decisions. Already, the court’s highest and lowest partisan approval scores in the past 15 years have come from Republicans.
As this chart shows, the public approval of the Court has been sinking steadily since roughly 2009, while disapproval has been rising:
When we break it down by party, we see that Democrats remain largely highly supportive of the Court while Republican support has varied sharply from year to year:
Looking at the charts, it becomes very clear that in recent years public opinion about the Supreme Court has fluctuated largely based on what decisions the Justices were handing down and how they decided these cases. This becomes even more apparent when you look at the chart that shows the breakdown of public opinion by party. In 2012, for example, Republicans, who had generally had a high opinion of the Court along with Independents and Democrats, turned very negative on the Court to the point where only 29% of self-identified Republicans said they approved of the Court. The fact that this coincided with the Court’s decision upholding the constitutionality of the Affordable Care Act surely cannot be a coincidence. That case was one of the most high-profile cases to reach the Court in several years and involved both long-standing Constitutional issues regarding the extent of Federal power and a piece of legislation that had been the subject of bitter partisan battles for the better part of three years. That Republicans would turn negative on the Court when it handed down a result that they didn’t like shouldn’t be surprising. Similarly, in 2014 the Court handed down its next high profile PPACA case in the Hobby Lobby case where it struck down part of the HHS mandate regarding birth control coverage. The fact that Republicans reacted positively to this outcome while Democrats reacted negatively would seem to be just a logical result from their pre-existing political beliefs. Finally, in this past year we’ve seen the Supreme Court hand down several high profile decisions, most notably the ruling in Obergefell v. Hodges striking down bans on same-sex marriage and the ruling on King v. Burwell upholding the subsidies provided under the PPACA. The reactions to those decisions can be seen in the chart. Democrats, who were largely supportive of those decisions, now have a fairly high opinion of the Court, Republicans have a fairly low opinion, and Independents are somewhere in the middle. This is consistent with other polling that has taken place in the past several months that has shown that public opinion about the Court has declined largely thanks to Republicans notwithstanding the fact that most Americans support the Court’s decision in Obergefell. As I’ve noted before — see here and here — public opinion regarding the Supreme Court, then, is largely a reflection of how the public feels about the direction the Court has moved in a given point in time. In that sense, it’s less a comment on the Court as an institution than it is a reaction to the most immediate news about what the Court has done.
These poll numbers, of course, come in the wake of a summer in which several of the Republican candidates for President have been denouncing the Court in a manner that can only be described as radical. People such as former Governor Mike Huckabee and Texas Senator Ted Cruz, for example, denounced the ruling and the Court, with both men going so far as to say that the Court’s ruling can be ignored and Cruz suggesting that Supreme Court Justices should be subject to popular election. When Rowan County, Kentucky Clerk Kim Davis became the center of a public controversy in August for her refusal to issue marriage licenses to same-sex couples notwithstanding the law and the orders of a Federal District Court Judge, many Republican candidates rallied around her in what was obviously an attempt to pander to the religious conservative wing of the Republican Party. Given all of this, it isn’t surprising to see that Republican voters have turned negative on the Court in recent years, and the fact that the Court has if anything become more of an object of partisan rancor only seems to guarantee that these passions will continue to be inflamed by opportunistic politicians and that it will fluctuate based on whether or not certain voters like what the Justices are saying at any given time.
Ideally, of course, this isn’t how the public ought to react to the Supreme Court because the Justices don’t exist to bend to the will of public opinion. The law is supposed to be, and generally is, separate and apart from the vicissitudes of public opinion. Instead, Judges and Justices are meant to focus on the facts of the cases before them, and the relevant law, and rule accordingly. Obviously, this isn’t a pure process because Judges are human beings like everyone else and, like everyone else, they bring their own opinions, prejudices, and world views into every case they decide. Additionally, they frequently deal with issues where the “correct” answer in terms of what the law is or ought to be isn’t readily apparent, which is why dissent and disagreement have a long and valuable tradition in American law. For better or worse, though, the Court has in some ways become just as politicized as the rest of America. Many people put the start of this process at the Court’s decision in Roe v. Wade, which set in motion a whole host of political movements that are still part of American politics, but it actually started much earlier than that. Twenty years before Roe, the Supreme Court began handing down the decisions that slowly but surely began chipping away at government-sanctioned racial discrimination in Brown v. Board of Education. Southern states responded to this argument by raising old discredited doctrines such as nullification and interposition, which basically argued that Southern states were free to ignore Supreme Court rulings they disagreed with. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional. Ever since then, though, the Supreme Court has become more and more of an institution where people base their opinions on whether or not they agree with the decisions or not. That’s not entirely healthy for the Rule Of Law, but it seems to be the world we live in now.
