In September, polls showed the Supreme Court’s public approval was around 37%, the lowest number since some of those polls began. Perhaps this was not surprising for a tribunal which, months after being entirely filled with Republican ideologues, had gutted both the voting rights law and union power, had reversed the stance on ordinances lockdown while changing the religious freedom law in a way that could only be explained by the Republican stacking, then issued a series of unmotivated ideological orders on his emergency dossier. Perhaps the straw that broke the camel’s back was the brief unsigned move that allowed Texas to ban six-week abortions, despite the law’s lack of popularity. But a new poll from last week shows September’s figures were not on time: The new figures tell us only 32% of those polled believe the country’s highest court is motivated by law. If you think public court polls should matter, those numbers should worry judges just as much as the plummeting approval numbers from September.
It shouldn’t be difficult. A court that controls its own role and attributes its own opinions has almost total control over the public narrative of its own work product. The problem may be precisely that – in response to September’s terrible number, many of the six Conservative qualified majority justices made different choices about how to handle this conversation and that lens. Some judges started to panic and do deeply silly things like blaming the press for their own partisan behavior as they stood next to the guy who single-handedly treated the court like his mean Bond kitty, or pronouncing intemperate speeches in which they attempted to blame the declining public confidence on the legal academy and individual journalists. I guess when the public en masse loses confidence in your neutrality and objectivity, an obviously cynical strategy is to blame the media and the public, rather than changing your own behavior.
Personally, I don’t see any other way to read these numbers than to say that most Americans believe that the judges are a bunch of supporters hacks.
But as they digested these new numbers, other judges started to panic and do smarter things, like responding to the criticisms they had received. One of the big complaints filed with this tribunal last fall was its overreliance on the shadow case, the fast track through which the tribunal resolves pressing issues. There has always been an emergency file. But suddenly it was being used for all things, seemingly so that the worst things could be done late at night without a proper argument or reasoned explanation. The most striking example of this court’s absurd use of the role was its decision not to hear arguments last September in SB 8, Texas’ cancellation of Roe vs. Wade. As Justice Elena Kagan, dissenting in this decision not to suspend Texas law, wrote: The increased reliance on the shadow case “becomes more irrational, inconsistent and untenable with each passing day.” And so, perhaps in response to criticism of both the methodology and the rulings, cold heads at court decided to hear public arguments, with a proper briefing, on the same issue last month. Positive evidence that there are some things the court can do when the public comes to view judges as partisan hackers, the main one not behaving as partisan hacks.
Obviously, this was not enough. This new Quinnipiac poll, suggesting that 60% of the public now think the court is primarily motivated by politics, is almost more striking than tanking approval ratings because it is remarkably consistent across partisan lines: on time Currently, 67 percent of Democrats, 62 percent of Independents, and 56 percent of Republicans agreed with this statement. Personally, I don’t see any other way to read these numbers than to say that most Americans believe that the judges are a bunch of partisan hackers. This fact may be good news or bad news depending on your personal political perspective, but I can tell you one thing: it is terrible for the tribunal and for the rule of law that is reinforced there.
The most important question behind the rulings that will rain down in the weeks and months to come is who will win: Chief Justice John Roberts, and any adjoining incrementalist jurists he can muster for the case, or Judge Samuel Alito and the cogs of the court -up carpe diem faction. These coalitions have moved around a lot in recent months, but it now seems that Justices Amy Coney Barrett and Brett Kavanaugh really don’t like the public seeing them as Federalist Society sock puppets, and that, at least in the occasion, they modulate their words and actions accordingly.
Meanwhile, the Biden commission on court reform, which at least initially signaled it was too concerned about the need for court legitimacy to address the causes of court illegitimacy, will be delayed by about one month in its final report. The idea of term limits seems to have garnered more support in recent weeks. But none of this changes the immediate calculation for nine judges who face an audience that not only has lost faith in the court, but seems to believe it is entirely captured by political interests.
And it couldn’t have happened at a more critical time. The SB 8 decision is expected to be released shortly. The court is set to hear the largest abortion case in decades in just over a week. And as Professor Stephen Vladeck points out in his thoughts on the phantom role, the court relies on public legitimacy for its power. If there is a repeat of the 2020 election that goes to the high court for resolution, it is in no one’s best interest if that court is seen as universally bought and paid for. As the court noted in 1992, in Family planning v. Casey, the abortion case which reaffirmed Deer, “The power of the Court lies[…]in its legitimacy, a product of substance and perception which manifests itself in the acceptance by the people of judicial power as able to determine what national law means and to declare what it requires.
Confidence in the court is not something judges can demand. It’s not something that judges can point fingers at the media or the academy. Maintaining public confidence in an independent judiciary relies in large part on behaving as a member of an independent judiciary. It just might not be something you would expect when we have six judges who want to end Roe vs. Wade, vastly extend gun rights, hamper the administrative state, and restrict voting rights, just then, and several of them have made it clear that the real project is to make constitutional hay while the sun is shining. But it is important that the public have a tribunal that they can respect. It is entirely up to the judges to decide whether they should look like politicians or lawyers. The general public may have little information and high aspirations about the Supreme Court, but this new poll suggests they are pretty savvy about what is going on when it is actually happening in front of their eyes.