Public Opinion and Politics at the Supreme Court

The Supreme Court’s favorability numbers have been falling steadily since 2000, when it issued its (infamous or not, depending on your perspective) decision in Bush v. Gore, which stopped the endless recounts and bickering over hanging chads, made George W. Bush President, and unwittingly set Al Gore on the path to fame and fortune.

us-supreme-courtCurrently, just over 50% of Americans have a favorable view of the Supreme Court, down from between 70 and 80 percent in the late 1990s and early 2000s.

While it’s impossible to know the precise drivers of the downward spiral, and while individual rulings undoubtedly play a role, one reason the Court’s approval ratings are tending to track those of Congress and the President could be that the Court itself is increasingly viewed as political in nature.

According to the Washington Post, 60 percent of Americans view the Supreme Court as primarily a political institution that pursues an agenda rather than a collection of justices that decide cases on legal principles instead of their own ideological preferences.  The percentage is lowest among self identified Democrats (54 percent) and highest among self-identified independents (63 percent).

Least Dangerous Branch?

Alexander Hamilton famously referred to the United States Supreme Court as “the least dangerous branch” of government, noting that it lacked authority to force or incentivize compliance with its pronouncements.  Instead, the Supreme Court is dependent upon its institutional capital — the regard in which it is held by the public and other officials — to give weight and effect to its decisions.

And it’s been successful, with a few exceptions.

Approaching 250 years on in the American Experiment, there is now a strong tradition of compliance with Supreme Court rulings that — declining public perception notwithstanding — makes it extraordinarily unlikely that any branch will now simply disregard a Court decision.

But everyone — the Court and the public alike — should be concerned about the shift in perception, because the increasing public conception of the Court as a political animal becomes something of a self-fulfilling prophecy.

When people regard the Supreme Court as another political branch, Presidential and congressional candidates campaign on the importance of keeping (or swinging) the balance of the Court.  Confirmation hearings and vetting is designed to select a candidates for the bench that will remain reliably in the political camp of the President who appointed them.  An increasing number of politically-focused — as opposed to dispute-focused — cases are directed to the Court as a substitute for failed legislative efforts.

alexander-hamiltonWhat Alexander Hamilton did not explicitly say in Federalist 78 — and what he probably took for granted — was that the principal reason the Supreme Court is the least dangerous branch is  because it is the least political.  Justices are appointed and given life tenure to insulate them from the pressures of electoral and administrative politics.  Their salaries cannot be diminished, even in the midst of a severe budgetary crisis.  The Court, with very few exceptions, controls its own docket.  The Court sits as a (relatively) large body to dilute the influence of any one member.  The Supreme Court was designed as the near polar opposite of a responsive institution.

And this is why the focus on distinguishing the Court from the executive and legislative branches on the basis of its inability to enforce its decisions is misguided.  I don’t think the framers of the Constitution conceived of the Supreme Court as a less powerful branch as much as a less political one.

While one can see how the public at large would have relatively little to fear from a nonpolitical judicial body without authority to enforce its pronouncements, one can just as easily see the dangers of an increasingly political court that regularly injects itself into policymaking efforts.

Now, it’s clear to anyone who has cursory review the history of the United States federal judiciary, that the Supreme Court has never been divorced from politics, and that, on occasion, it has sought intervention in political battles.  The Court has even faced crises of declining institutional perception similar to that facing the Court today.  But never has the nomination and confirmation process been so consistently, overtly political, and never has the Court’s agenda and potential case load been so driven by political disputes.  These days, all significant legislation has at least two phases: (1) the legislative phase, and (2) the judicial challenge phase.  The whole process, on a fast track, takes about 5 years.  It’s ridiculous.

What to Do?

So what (if anything) can be done?

Let me offer a few suggestions:

(1) Stop politicizing the confirmation process.  Don’t campaign on changing or maintaining the composition of the court.  There should be a presumption in favor of confirmation for a President’s nominees.  Vetting should be done on the basis of competence and character, full stop.  This step alone would go a long way toward mitigating our current problems.

elephant(2) Stop vilifying Justices with which you disagree.  On this point, take a lesson from the Justices themselves, who, by all accounts, get on with each other rather well and accord each great respect.  To wit, Justices Scalia and Ginsburg riding an elephant together in IndiaJustice Scalia teaching Justice Kagan to hunt, and, one of my personal favorites, Justice Ginsburg’s forbearance to what many believed to be a personal slight by Justice Alito.

(3) Stop looking for judicial solutions to political problems.  In the vast majority of cases, the Constitution does not protect you from the stupidity of the people with which you disagree.  Just like not all ignorance is racism, sexism, agism, or whatever other -ism raises your hackles at the moment, not all dumb laws are unconstitutional.  Paradoxically, it shows (in my opinion), unintentional disrespect to the Constitution to assume otherwise.  Folks, if we show some restraint with the litigation and put our efforts toward actually taking legislative and other steps on certain issues, I suspect we might be amazed at what we can get done.  The idea that you can win it all in a legal battle to the death is correct only in the sense that disputes end up meaningfully dead but perpetually present.  You’re left with little more than what I call zombie disputes that exhaustingly and never-endingly inspire a great deal of passion and heat but no progress.  And the Court is co-opted by the constant bickering.

(4) Understand when the Court declines to intervene.  And maybe even be grateful.  Understand that a decision not to intervene doesn’t mean that the Court doesn’t care about your rights (or whatever rights might be at issue in the case presented).  Understand that it doesn’t necessarily mean that the Court is abdicating its constitutional role.  Understand that when the Court declines to intervene it does so despite great pressure to the contrary, and it is usually an attempt to maintain the separation between the branches.

All courts are controversial.  How could they be otherwise?  The task of a court is to adjudicate disputes between persons and to declare the rights of individuals in specific cases.  In every case, one will win and one will lose.  All courts are political in the sense that everything is political.  To an extent, we’re stuck with that reality.

But let’s not make it worse than it needs to be.



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