[Americans’ antipathy toward the high court is deepening—and
for the first time, a slim majority favors expansion.]
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THE SUPREME COURT’S PUBLIC LEGITIMACY CRISIS HAS ARRIVED  
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Matt Ford
September 26, 2022
The New Republic
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_ Americans’ antipathy toward the high court is deepening—and for
the first time, a slim majority favors expansion. _

, Jabin Botsford/Getty Images

 

The Supreme Court’s summer vacation ends in three weeks. For some of
the justices, it was not an entirely restful one. Two of the court’s
liberal members have warned in unmistakable terms that the court’s
recent actions have led it to a legitimacy crisis of sorts. “Each
time the court upends precedent, it does create discomfort in the
society,” Justice Sonia Sotomayor warned
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at a California lawyers’ event earlier this month. “I think
there’s an innate understanding, or at least expectation, that law
itself will be stable and not subject to political influence,” she
said. “When the court does upend precedent, in situations in which
the public may view it as active in political arenas, there’s going
to be some question about the court’s legitimacy.”

Justice Elena Kagan raised similar concerns during a Rhode Island
event this month. “The court shouldn’t be wandering around just
inserting itself into every hot button issue in America, and it
especially, you know, shouldn’t be doing that in a way that reflects
one ideology or one set of political views over another,” she
explained
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to the audience. Though neither Kagan nor Sotomayor mentioned their
conservative colleagues by name, it was not hard to deduce to whom
they were referring.

Their warnings are borne out by public opinion surveys conducted by
three of the most reliable polling organizations on Supreme Court
issues. Taken together, they show a clear and unambiguous shift in how
the American people perceive the court since it overturned _Roe v.
Wade_ this summer—and a growing willingness to rein in the
justices’ ideological shift. If that backlash among the public
proves durable, and if the Supreme Court’s conservative majority
does not change tack, some sort of confrontation between the two
forces may be inevitable.

On June 23, Gallup found
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that only 25 percent of Americans said that they had either a great
deal of confidence or quite a lot of confidence in the high court.
That represented a 5 percent drop from the previous low in 2014, as
well as a 10 percent decline from the 2021 survey. The Gallup poll
technically preceded the release of the court’s decision in _Dobbs_
on June 24. But it came more than a month after Politico published a
draft copy of Justice Samuel Alito’s majority opinion in the case,
which all but proved that the court would overturn _Roe_ later that
month.

Next came a survey by the Pew Research Center on September 1. It
incorporated the entire period after _Dobbs_’s release and found
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an even deeper shift in public opinion about the Supreme Court in
three significant ways. First, it found that the court’s overall
favorability ratings were underwater for the first time since it began
asking Americans in 1987, with 49 percent of Americans viewing the
court unfavorably and 48 percent favorably. That was a sharp reversal
from two years ago when 70 percent of Americans said they viewed the
court favorably and 28 percent said they didn’t. In essence, nearly
a third of Americans have changed their mind about the Supreme Court
over the past two years.

Which segment of Americans changed their minds? Pew’s second notable
finding was the emergence of a major partisan divide in how people
view the court. While 67 percent of Democrats described themselves as
favorable in 2020, only 28 percent said the same thing in 2022.
Republican support, by comparison, clocked in at 73 percent. The
Supreme Court has seen other sharp partisan changes in its public
perception in recent years. Republican support briefly dipped to 33
percent in 2015, the year that the justices struck down same-sex
marriage bans and turned back right-wing litigation on abortion rights
and affirmative action, before rebounding during the Trump era. But
the post-_Dobbs_ drop among Democrats stands out for both the size and
the speed of the decline.

The third notable finding from Pew was a growing sense that the
Supreme Court as an institution had grown too strong. Only 25 percent
of Americans said in 2020 that the justices had too much power. That
number jumped to 45 percent after _Dobbs_, with only a 3 percent gap
separating them from those who were fine with the status quo. Here Pew
also found a partisan divide and a surging sense of dissatisfaction on
the left: 23 percent of Democrats said they supported court-packing
the Supreme Court in 2020, when the question was already circulating
among some Democratic officials and liberal commentators. After
_Dobbs_, that number rose to 64 percent.

Marquette Law School’s most recent survey
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about the high court, which was published this week, again revealed a
sharp decline in public support for the justices. It found that the
court went from a 66 percent/33 percent approval/disapproval rating
among all Americans two years ago to just 40 percent/60 percent today.
The causal factor was again obvious, as Marquette found that roughly
two-thirds of Americans disapproved of the _Dobbs_ ruling. But the
real humdinger was buried in the crosstabs: 51 percent of Americans
said that they either strongly or somewhat supported expanding the
Supreme Court, including a bare majority of self-described
independents. To my knowledge, this is the first reputable Supreme
Court pollster to find majority support for that proposal, even if it
is a bare majority at that.Marquette Law School’s most recent survey
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about the high court, which was published this week, again revealed a
sharp decline in public support for the justices. It found that the
court went from a 66 percent/33 percent approval/disapproval rating
among all Americans two years ago to just 40 percent/60 percent today.
The causal factor was again obvious, as Marquette found that roughly
two-thirds of Americans disapproved of the _Dobbs_ ruling. But the
real humdinger was buried in the crosstabs: 51 percent of Americans
said that they either strongly or somewhat supported expanding the
Supreme Court, including a bare majority of self-described
independents. To my knowledge, this is the first reputable Supreme
Court pollster to find majority support for that proposal, even if it
is a bare majority at that.

At this point you might be asking, “So what?” These numbers would
be calamitous for the court’s conservative justices if they were on
the ballot in this fall’s midterm elections. But they are not and
they never will be. And, indeed, there is an argument to be made that
the Supreme Court is not supposed to be responsive or even sensitive
to public opinion. It is, at least in theory, a court of law that is
supposed to impartially decide cases and not an elected body with
constituents to satisfy and voters to woo.

If the polls merely showed that Americans were mad at the Supreme
Court, then it might be easier to overlook. But the post-_Dobbs_
surveys also reveal that a clear plurality of Americans—and perhaps
even a majority of them—are pairing that anger and frustration with
a desire for institutional reform, particularly among Democrats.
Whether this desire will persist in the long run or fade as time
separates the country from the moment that _Roe_ was overturned is
impossible to predict. But for now, the desire undeniably exists.

For what it’s worth, I suspect that this urge will not fade
immediately. _Dobbs_ had immediate consequences for millions of
Americans across the country, particularly in the Midwest and the
South where a series of total or near-total bans snapped into place.
The results of those bans have already drawn an intense backlash of
their own. Abortion rights will remain an active political issue as
state legislators and officials in places like Indiana, Michigan, and
Wisconsin debate what comes next for their people in a post-_Roe_
world. And even in the states where no legislative action is imminent,
recent GOP proposals to pass a 15-week ban in Congress will ensure
that abortion rights will play a major role in this fall’s midterm
elections for all Americans.

_Roe_ was somewhat unique in the firmament of Supreme Court decisions
that Americans deeply care about. It is one of a scant few cases,
along with _Brown v. Board of Education_ and perhaps _Dred Scott v.
Sandford_, that can be freely mentioned without having to describe the
underlying details of the case. At the same time, the Supreme Court
will have more opportunities in the upcoming term to touch raw nerves
in American political life. In the next few months, the court will
hear oral arguments on whether it should bar any consideration of race
or diversity in college admissions, and the likeliest answer from the
conservative majority will be “no.” The justices will also get yet
another opportunity to narrow or gut the Voting Rights Act of 1965
when it hears a racial gerrymandering case from Alabama this fall. If
Justice Clarence Thomas gets his way, major precedents on everything
from same-sex marriage to contraceptive access could be
“revisited.”

Chief Justice John Roberts famously said during his confirmation
hearing in 2005 that the Supreme Court justice’s role is akin to
that of an umpire at a baseball game who simply calls balls and
strikes. That comparison is not quite accurate, at least for him and
his eight co-workers. It is fairly true for lower court judges, who,
like umpires, have little to no say about which cases or at bats they
must consider. But the Supreme Court’s docket is almost entirely
discretionary, which allows for an ideological majority on the court
to essentially choose how it will reshape the law and the
Constitution.

When the court agreed to take up _Dobbs_, for example, there was no
split among the circuit courts of appeal to resolve, or muddled
decision by an appeals court to clarify, or major undecided question
of constitutional law to answer. There was only a 50-year push by the
conservative legal movement that wanted to overturn _Roe_ and a
realization by the conservative justices that they had the five votes
necessary to do it. The college admissions cases that will be heard
this term also came about without a circuit split or a major change in
the law. They are mainly the product of one right-wing legal activist
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who has tried, so far unsuccessfully, to overturn the Supreme
Court’s precedents on the matter for more than a decade. Imagine if
a Boston-born umpire went out of his way to call balls and strikes by
the Red Sox’s division rivals.

The terminology that we use to describe this situation—a crisis of
legitimacy, a loss of prestige and authority, a decline in popularity,
or something else—matters less than its practical implications. The
Supreme Court has shown little to no interest in not taking up cases
that resolve major political issues in the conservative legal
movement’s favor, even if it is out of step with public opinion. A
strong plurality (and perhaps even a narrow majority) of the American
people is not only unsatisfied with this trend, but is also
increasingly supportive of proposals that would prevent or reverse it.
Eventually, one of these sides will have to win or give way.

Matt Ford [[link removed]] @fordm
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Matt Ford is a staff writer at _The New Republic._

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* The Supreme Court; Dobbs; The Supreme Court's Drop in Public
Support; Roe v Wade;
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