(AP Photo/Charles Dharapak, File)
The New York Times reports a recent poll showing the Supreme Court’s approval rating at 44 percent. This represents one of the lowest numbers the justices have polled in recent years and is part of a generally downward slide since 2009. Over at least the previous twenty-five years the Court has consistently been one of the more popular institutions in the country. What’s been going on to change this?
A plausible answer is: partisanship. Polls show a widespread disgust with partisanship in Washington; Congress’s approval rating was at an all time low in May. Although the justices often are divided into left-right ideological blocs, those blocs have recently become identified in the public mind with the Democratic and Republican parties. That, combined with a set of cases that bring partisan issues to the fore, may be leading the public to see the Court as part of the same Washington politics it deplores.
One reason the justices did so well in the past is that they were typically seen as above politics. Not ideology, politics. The distinction matters. Ideology is principled, you believe in something. Politics, on the other hand, is seen these days as devoid of serious content.
When Elena Kagan took her seat as a justice in 2010, the Court’s ideological blocs—for the first time since at least 1953—mirrored the parties of the presidents who appointed them. Which is to say, the Court’s liberals all were appointed by Democratic presidents, and the conservatives by Republicans. Now that justices’ natural ideological divisions mirror partisan ones, it’s easy to understand why the public is confused.
True, most Americans are clueless as to which president appointed which justice. But that’s only until the Court’s cases provide fodder for the press to make an issue of it. The New York Times story mentions Bush v. Gore and Citizens United, two cases that have become household names. In Bush v. Gore the justices cartwheeled from principle to politics. Although their overall approval rating did not drop in the decision’s aftermath, that was because the number of Democrats shifting to the negative was outweighed by the number of newly positive Republicans. Yet, the very nature of that shift underscored the volatile effect on the Court’s popularity of being perceived as inhabiting the political realm.
Citizens United was the Roberts Court’s turning point. Previous to that the Supreme Court hit its lowest public approval rating in 2005 in the wake of a brutal filibuster battle in Congress over judicial appointments. Without regard to anything it had done, the Court found itself tainted by partisan politics. Then Sandra Day O’Connor retired from the bench, Chief Justice William H. Rehnquist died and the honeymoon with the Roberts Court began. That lasted until the Citizens United decision in 2010, which marked the beginning of the current downward slide. The flood of commentary on Citizens United spotlighted the connection between that decision and partisan politics—especially money in politics.
Enter the litigation over the Affordable Care Act. As the lower court decisions on the constitutionality of the healthcare reform legislation came down, commentator after commentator noted the political affiliations of the judges. This was because in the district courts, Democrat-appointed judges voted to uphold the individual mandate and judges appointed by Republicans voted to strike it down. It was only when, in the appellate courts, two conservative Republican-appointed judges voted to uphold and one Democrat-appointed judge did the opposite, that the connection between judges and partisan politics died down a bit. But once the health care controversy reached the high court, news analyses yet-again aligned the justices not just by their judicial philosophy, but in terms of their partisan affiliations. The Court got caught up in the politics swirling around “Obamacare,” which may explain the justices’ continued downward slide in public approval.
If this partisanship theory has purchase, matters are only likely to grow worse. “Stealth” nominees like David Souter disappointed the parties that put them on the bench. As a result, nominees now seem to be chosen with more care for their purity and fidelity to the nominating president’s views. This only hardens the partisan-ideology divide.
Then there’s the caseload. After Roberts’ six relatively quiet terms as Chief Justice, all of a sudden controversial issues are proliferating on the Court’s docket. This term it’s Obamacare, Arizona’s do-it-yourself immigration policy, and the Montana Supreme Court’s head-on challenge to Citizens United, which thrusts the money-in-politics issue back in the spotlight. Next term will see cases challenging affirmative action in higher education, the constitutionality of the Voting Rights Act, and perhaps gay marriage.
There’s a deeper logic operating here. On some issues, like abortion, the political parties have opposing views, but everyone knows there are pro-choice Republicans and pro-life Democrats. Particularly with social issues, partisanship and ideology don’t necessarily align. But recent issues confronting the Court pit Republicans against Democrats more directly. The Times’s own polling on the Arizona immigration case showed Republicans overwhelming Democrats in support of Arizona’s get-tough policy. This may hold true for some other of the big cases currently on the Court’s docket.
The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. Until recently, the justices had fared well even among people who disagreed with this or that decision. Controversial decisions are, after all, part of what people admire about an independent court. But that respect will ebb if people see division on the Court as nothing other than business as usual in Washington.
Of course, the justices may not give a farthing for public approval. Views among scholars differ on the degree to which it affects them. Still, the Chief Justice has said he’d rather the Court not be seen in partisan terms. His instinct is probably right. How he gets it out of its present predicament is another question entirely.