Have American politics killed the impartial Supreme Court?
The United States judicial system, like its fellow federal branches of government, hasn’t fared very well in the public eye lately. New data from Democracy Corps, a Democratic-aligned polling consortium, shows that the public thinks the court is a political creature. And the public does not care much for political creatures in 2014.
A recent Pew Research Center poll shows that the public regard for the court has been lower than usual lately (although it’s made a slight recovery from the historic lows it hit the last time Pew polled on this subject).
Historical Gallup data show the same thing. The Supreme Court may be in a better place public opinion-wise than the president or Congress, but it has been following the same downward trend.
There’s plenty of anecdotal evidence that backs up that perception.
In an interview with USA Today in 2011, Justice Ruth Bader Ginsburg said, “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.” She declined to answer questions about any potential political motivations of her colleagues.
Although Supreme Court law clerks in the ’70s and ’80s were usually not appointed on a partisan basis, since then, clerks increasingly match the ideology of the president that appointed their chosen justice, as a 2010 New York Times report highlighted.
There is no doubt that many Supreme Court decisions land along partisan 5-4 lines under the Roberts court, but these surveys and data points miss one crucial point: Politics have always been a part of the Supreme Court.
Presidents have long sought to calibrate the court to achieve their political ends. After the Supreme Court struck down one of the most important parts of President Franklin D. Roosevelt’s New Deal legislation, he proposed adding a few seats to the court to give the old justices a hand — and to perhaps dilute what he saw as an increasingly conservative bench. No one fell for it. President Ulysses S. Grant was also accused of court packing.
In 1987, the Robert Bork confirmation hearings lifted the politicization of the Supreme Court to new heights, and ushered in an era in which the legislative branch saw the increased political utility of the Supreme Court.
As the New York Times wrote in September 1987,
The battle raging over Judge Robert H. Bork, from the Senate caucus room to the television screens of America, has thrust electoral politics and public opinion into the Supreme Court confirmation process more deeply than ever before.
With the Senate Judiciary Committee hearings entering their third week, that process may have been permanently transformed, especially if the Bork opponents who have seized the momentum in the last two weeks carry their string of tactical victories through to final triumph.
”We’re getting perilously close to electing a Supreme Court Justice,” Lloyd N. Cutler, a leading Washington lawyer who has been the most prominent Democrat so far to testify for Judge Bork, said gravely in a hallway interview last week.
With the decisions reached in Bush v. Gore, the Affordable Care Act decision, the Citizens United decision, Shelby County v. Holder and many others, justices were blamed for guiding American politics based on their own ideology rather than simply interpreting the law. New vacancies on the court are now treated as events of the utmost historical and strategic importance.
The process is self-fulfilling at this point. As justices’ decisions mirror the ideologies of those that set them up on the political chess board, presidents and legislators can’t help but keep playing the game. As Ezra Klein wrote right before the Affordable Care Act decision,
The people who serve as judges on the Supreme Court have been vetted by political parties, have often worked for political parties, frequently have loyalties to people in political parties who helped their career, and spend much of their time in Washington, where they sort into social groups they find congenial. They are, in other words, more, not less, political than most Americans.
All of the political factors weighing on the Court have created the most partisan bench in history, according to a study by Richard Posner and Williams Landes. And while the Supreme Court has always been political, the fractious confirmation hearings and the media attention surrounding high-profile decisions have left the public more attuned to the politicking.
The Greenberg Quinlan Rosner survey also asked respondents if they would support reforms to the Supreme Court. Unsurprisingly, the people unhappy with the Supreme Court’s performance were open to changing how the system is run.
(The second question is a bit odd, however … seeing as the Court already discloses their outside activities in financial disclosure reports.)
Despite the American public’s complaints about politicking on the Supreme Court, public opinion of the Court is completely dependent on whether partisans agree with the decisions the justices reach. The Pew Research survey released on Tuesday has a chart that tracks public opinion of the Supreme Court since 2008, broken down by political party. When the Supreme Court made a decision that aligned with their ideology — or a justice nominated by a president from their party was confirmed to the court — opinion jumped up. When the Supreme Court’s decision did not align with their ideology, opinion dropped.
The public may say they are miffed with the Supreme Court’s politics, but their opinion of the court is completely guided by the perceived political bent of the Supreme Court’s decisions. The chart also reveals that although the public thinks the Court is guided by politics, they aren’t entirely sure what kind of politics. Like with many other things, the public tends to correlate much of what is happening in national politics with the White House. If the economy is good, the public gives the president a thumbs up. If they like the president, Americans typically give Congress a boost, too — especially the legislators who come from the same party as the president. The same is true of the Supreme Court, this data seems to suggest. And, not only that, but the public also assumes that the ideology of the Court matches the ideology of the president. Here’s a look even further back in history.
Since 2010, Democrats have had a higher approval rating of the Court than Republicans have, despite the fact that many smart people have crunched the numbers and found that the current court is more conservative than it has been in decades.
Like most issues, the public’s understanding and evaluation of the Supreme Court isn’t always logically consistent. However, since the Supreme Court is also the branch of federal government most shielded from the whims of public opinion, the conflicting signals won’t necessarily have any effect on where politics and ideology take the court in the future. The court may be political, and the public might say they don’t care for it much, but there isn’t much they can do about it.