Reviews | The Supreme Court now operates outside of American public opinion


This analysis is not just anecdotal. In a series of surveys we have conducted with the American public over the past few years, we show that these latest rulings put the Court at complete odds with public opinion.

Our SCOTUSPoll research is based on asking ordinary Americans about their own views on issues heard by the Court. Our work, recently published in the Proceedings of the National Academy of Sciences, shows that while Supreme Court decisions have aligned with the views of the average American for most of the past 15 years, they have recently shifted sharply to the right. In fact, we felt that the current Court is fairly representative not of the average American, but rather of the average Republican Party voter.

This change came about when Judge Ruth Bader Ginsburg, a liberal, was replaced by Amy Coney Barrett in 2020, locking in a six-judge conservative supermajority. His arrival shifted the crucial vote in the Court from Chief Justice John Roberts to either Brett Kavanaugh or Neil Gorsuch.

The recently completed mandate is no exception to this. We conducted another survey shortly before the Court announced most of its key decisions this term. Take Dobbs. Our poll shows that while the public was evenly divided on the constitutionality of the 15-week Mississippi law at issue in the case, more than 60% of Americans believe that Roe vs. Wade should be maintained.

But a majority of Republicans felt otherwise. They thought Mississippi law had to be obeyed and deer reversed. That is exactly what the Court did: uphold the Mississippi law and overturn deer. (Interestingly, Roberts’ preference for enforcing Mississippi law as well as deer enjoyed far more support overall and among Democrats and independents than the majority decision to remove deer That’s right.) Other cases — like whether the EPA has the authority to broadly regulate emissions in the energy sector — have been found to be similar.

Of course, the Constitution in no way obliges judges to follow public opinion. Judges are not elected by universal suffrage and the Supreme Court was designed largely so that judges, appointed for life, would be insulated from political pressures, including the ups and downs of public opinion. The majority opinion in Dobbs warns that the Court “cannot allow our decisions to be affected by outside influences such as concern about public reaction to our work”.

Even so, the composition of the Court, and therefore also its decisions, are largely driven by political processes, primarily who wins the presidency and which party controls the Senate. Many people argued that this link to politics would keep the Court squarely within the “guardrails” of broad public support.

And for many years he did. Even though Republican appointees have dominated the court recently, the modern court has not always been a reliable partner of the Republican Party. The Court’s two previous pivotal justices, Justice Anthony Kennedy and Chief Justice Roberts, have often sided with liberals on key issues, such as gay rights, the death penalty, health care and also abortion.

On many of these decisions, the Court was close to majority public opinion, as our survey data shows. For example, in 2020 the Court ruled in June Medical Services vs. Russo that a Louisiana law that would have shut down virtually all abortion providers in the state was unconstitutional — a result our data shows was supported by 57% of Americans.

But the safeguards that kept the Court close to public opinion are failing. Even though Democratic candidates have won majority votes from both parties in seven of the last eight presidential elections, six of the Court’s nine current justices have been nominated by Republican presidents. This resulting majority is reliably strong and conservative, and our data shows that it appears to settle in a position that reliably aligns with Republican Party preferences — and is to the right of the vast majority of Americans.

Strong rule by an electoral minority could be tenable if the Court were able to retain public support. As a pragmatic political reality, however, our work suggests very shaky waters ahead if the Court continues to operate outside of majority public support. Recent public opinion polls show the court at its lowest ever approval rating. And while immediate court reforms seem unlikely, our research suggests that if more Americans updated their perceptions to accurately reflect how conservative the Court has become, then support for reforms — like expanding the size of the Court or the imposition of term limits on judges – will likely increase.

More seriously, a deeply unpopular Court handing down decisions, right or left, that are not supported by public opinion will test the rule of law. In the 1960s, for example, ruling whites throughout the South refused to follow the desegregation rulings of the Court, shutting down utilities and closing schools rather than integrate. Today, opposition to the Court looks likely to become politically popular for governors of blue states. We’ve already seen calls from governors such as Charlie Baker of Massachusetts and Gavin Newsom of California to push back on those decisions, doubling down on reproductive rights and promising to protect travel from red states.

We are certainly not yet at the point where the rule of law is under threat. And the relationship between public opinion and the Court is complicated. It is possible that the Court’s decisions will move in a more moderate direction, perhaps in response to the public outcry.

But our research suggests that is happening less and less, with the majority of the Court firmly bringing the institution into line with Republican Party policy. And that sounds like a recipe for potentially diminishing support for the Court at best — and threatening the Court’s central role in American democracy at worst.


Politico

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