(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.