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Welcome to part 2 of the profile of the US Supreme Court, prompted in part by the recent resurgence of SCOTUS in the news. While you do not have to read the first part to understand where this is going, you can click here to read Part 1: The Size of the SCOTUS Bench and Its Occupants.
The following posts will round out this series:
- Part 3: The Development of SCOTUS Power Over Time
- Part 4: How Does a Case Get Before the Supreme Court?
Read below for part 2, which concerns how citizens view the Supreme Court.
Following public outcry over the U.S. Supreme Court refraining from blocking the new Texas law tightening abortion restrictions, the newest member on its bench, Amy Coney Barrett, spoke at a lecture at the University of Louisville. In her speech, Barrett expressed concerns that the public increasingly sees the SCOTUS as a partisan institution. While understandable, is she right about the public’s perception?
The answer, as usual, is a bit more complicated.
It warrants mentioning that partisanship is not the same as ideology. (If you’ve read articles of mine in the past, you’ve seen me say this fairly often.) While partisanship and ideology are correlated, people can have the same partisan label (e.g. Republican or Democrat) while varying in how ideological they are (e.g. degrees of conservative or liberal), sometimes even labeling themselves differently from others in the party. That’s why you often hear about, for example, progressives versus moderates/centrists in the Democratic Party. They may be the same party, but they can differ greatly on ideological views and stances on key issues. It may sound nitpicky to distinguish between partisanship and ideology, but it is a critical difference.
In the case of SCOTUS, the discussion is more about ideological views. It is often remarked that the institution is decidedly conservative, and that is true to some extent. However, there is not a clean 1-to-1 comparison between political views and interpretations of law, and it certainly isn’t uncommon for those with a political agenda to try to twist laws or perceptions of judges in their favor.
But to get a clear picture of how the public really sees the SCOTUS, we need to take several steps back. How exactly do we gauge public perception of the highest court in the country? And how are people’s perceptions of SCOTUS influenced?
How Much Does the Public Really Know About and Pay Attention to SCOTUS?
The judicial branch of the federal government is the most obscure of the three branches. There is a lot less attention paid to, and knowledge of, the Supreme Court and other federal judges compared to Congress and the president and his Cabinet. Public opinion research has borne witness to this relative lack of awareness. Here are some examples:
- In an April 2015 survey by Pew Research Center, only 33% of respondents correctly stated that there were three female justices.¹ (This is still the case today, as Amy Coney Barrett replaced then-justice Ruth Bader Ginsburg following the latter’s death in 2020. The other two justices were and still are Elena Kagan and Sonia Sotomayor.)
- In an August 2013 survey by Pew Research Center, only 28% of respondents correctly stated that John Roberts was the chief justice. Perhaps more interestingly, 51% of respondents refused to answer the question of who the chief justice is.¹
- In an August 2018 poll by C-SPAN, only 48% of respondents could name at least one Supreme Court justice.²
- In that same poll by C-SPAN, only 68% of “likely voters” said they follow news about the Supreme Court “somewhat often” or “very often.” (On a related note, you can read my post about what a “likely voter” is here.)
How and When the Media Covers the Supreme Court
Levels of public awareness of the Supreme Court are not necessarily static, however. When the media reports on SCOTUS more often, this leads to an uptick in public attention towards it.
The vast majority of people’s interactions with SCOTUS is limited solely to media reports, meaning the media can have a particularly powerful effect on people’s opinions of the nation’s highest court. The media often makes a point about any partisan and ideological affiliations of justices that they can. Most of the SCOTUS justices are labeled as conservative, and Amy Coney Barrett’s confirmation to the bench is often considered to have made the court strongly so. The more strongly partisan and ideological elements of the public also place emphasis on justices’ ideology, however simplified it may or may not be.
Relatedly — though more so in the case of federal judges that aren’t on the Supreme Court) — judges are labeled according to which president nominated them. This is usually in the form of “a [insert president’s last name] judge.” Sonia Sotomayor and Elena Kagan are “Obama judges” while Brett Kavanaugh and Barrett are “Trump judges” in such parlance. This is another media cue that gives news consumers some idea of a judge’s ideological leanings, though it is still an imperfect measure.
The media gets significantly pickier about what Supreme Court news to cover than the president or Congress, however. More mundane wheeling-and-dealing by the executive and legislative branches may get some coverage, but this is much less the case with the judicial branch. The relative isolation from the populace and the general lack of public knowledge of SCOTUS leads the media to look for particular cues to demonstrate a case’s newsworthiness. A couple examples includes interest group participation and whether a case upsets the status quo.³ If there is heated involvement by groups like Planned Parenthood or the National Rifle Association, for example, there’s a strong chance that the case will be considered newsworthy.
Measures of Public Opinion
Limiting the discussion strictly to how the public perceives the ideology of SCOTUS doesn’t get a full picture of public opinion, though it is important. Here are some of the ways we can look at what the populace thinks about the Supreme Court:
- Approval of job performance: A Gallup poll in September 2021 resulted in only 40% of respondents saying they approved of how SCOTUS was handling its job while 53% said they disapproved. The last time Gallup measured lower approval than disapproval of SCOTUS was in September 2016. Compare this with 49% approval and 44% disapproval just a few months before in July 2021, and in July 2020 it was 58% approval and 38% disapproval.⁴
- Level of trust: The same Gallup poll in September 2021 found 54% of respondents had either a “fair amount” or “great deal” of trust in the Supreme Court. At basically the same time period in 2020, 67% of respondents felt this way. The last time Gallup recorded a lower percentage than in September 2021 was in September 2015, when 53% of the respondents had a “fair amount” or “great deal” of trust in SCOTUS.⁴
- Opinion on the Supreme Court’s ideology: The September 2021 Gallup poll found that 37% of respondents felt the Supreme Court was too conservative, 20% thought it was too liberal, and 40% said the ideological leanings were “about right.” September 2016 was the last time Gallup recorded more people saying the court was too liberal (37%) than too conservative (20%), with 39% saying the court’s ideology was “just right.”⁴
The opinion that the Supreme Court leaned too conservative was perhaps what Amy Coney Barrett meant when she expressed concern that the public saw the SCOTUS as too partisan. SCOTUS justices do not have official party affiliations even if they may actually support that party in private. Maybe she was referring to opinions of the Supreme Court in general, or simply just the media coverage. While that cannot be said for sure unless Justice Barrett clarified her comments, the public’s opinion on the Supreme Court’s ideology may be the best proxy that we have. If we use that data as a stand-in for partisanship, Justice Barrett’s concern does have some basis.
However, like in many political discussions, there are some caveats and nuances.
- In the case of Gallup, they only have asked this question about how respondents perceive the Supreme Court’s ideology once a year since 2004.⁴ It’s not polled often like, say, presidential approval ratings. Gallup is not the only organization polling Supreme Court opinions — others like Marquette University’s law school have also done such surveys — but this question is still not asked that often overall. Without more frequent data, it’s hard to say for sure whether this is really a trend in public opinion or just a short-term effect. Short-term changes can happen a lot in polling.
- The Supreme Court has become salient again. When something is considered particularly newsworthy and significant to merit such extensive coverage, the increase in attention itself tends to also affect people’s evaluations. Since SCOTUS is relatively obscure amongst the public, this increase in media coverage may be a large driver in people’s opinions. When SCOTUS fades into the news background again, are these opinions going to hold?
- A respondent’s party identification, unsurprisingly, can have a significant impact on their views of the Supreme Court. Marquette University Law School polling in July 2021 and September 2021 bears this out. In the July poll, approval of the Supreme Court was at 57% of Republicans, 61% of independents, and (perhaps most remarkably) 59% of Democrats. But in September, there was a precipitous drop-off in favorability amongst independents and especially Democrats — approval was at 61% of Republicans, 51% of independents, and 37% of Democrats.⁵
- Pew Research Center polling done only about a couple months before Justice Ruth Bader Ginsburg’s death in September 2020 demonstrates partisan differences as well, though on a question of how respondents perceive the court’s ideology. Amongst Republican and Republican “leaners” (that is, independents who indicated a preference for Republicans), 66% thought the Supreme Court was “middle of the road” while only 12% thought it was conservative. Amongst Democrats and Democratic “leaners,” however, only 47% thought SCOTUS was “middle of the road” while another 47% thought it was conservative.⁶
Will Current Public Opinion on SCOTUS Last?
That is perhaps the big question here. Many of the reasons above make it a difficult question to sufficiently answer. Polling on these questions is not done frequently enough to capture whether there are real trends going on or simply short-term responses to Supreme Court salience. SCOTUS is still isolated enough from the public that, once it fades into the news background again, the current public opinion may not hold. Then you must consider partisan and ideological biases in the public and how those influence people’s perceptions of SCOTUS.
There is also some debate amongst scholars as to whether public opinion influences the Supreme Court or if the Supreme Court is simply responding to the same social forces that the public is, or if something else is at work.⁷ ⁸ ⁹ Depending on the camp you fall into, that could also influence the answer of whether current public opinion will last. If the Supreme Court was responding to public opinion, then they might change in a way that public opinion softens towards them but that would then call into question their judicial independence.
Maybe some aspects of public opinion will change will others stay mostly the same. The perception of SCOTUS as too conservative may hold for a while given how the media covers it, but perhaps favorability of the institution may climb back up once the dust from the most recent SCOTUS controversy has settled. In any case, we will have to wait and see what happens.
- Meredith Dost. Pew Research Center. May 14, 2015. “Dim public awareness of Supreme Court as major rulings loom.” https://www.pewresearch.org/fact-tank/2015/05/14/dim-public-awareness-of-supreme-court-as-major-rulings-loom/ (accessed October 9, 2021).
- Emily Birnbaum. The Hill. August 28, 2018. “Poll: More than half of Americans can’t name a single Supreme Court justice.” https://thehill.com/regulation/court-battles/403992-poll-more-than-half-of-americans-cant-name-single-supreme-court (accessed October 9, 2021).
- Logan Strother. 2017. “How Expected Political and Legal Impact Drive Media Coverage of Supreme Court Cases.” Political Communication 34 (4): 571–89.
- Gallup. “Supreme Court.” https://news.gallup.com/poll/4732/supreme-court.aspx (accessed October 9, 2021).
- Charles Franklin. Marquette University Law School. “New Marquette Law School Poll Finds Sharp Decline Since July In Public Opinion Of The Supreme Court’s Job Performance; Change Is Driven By Partisan Differences.” https://law.marquette.edu/poll/2021/09/22/new-marquette-law-school-poll-finds-sharp-decline-since-july-in-public-opinion-of-the-supreme-courts-job-performance-change-is-driven-by-partisan-differences/ (accessed October 10, 2021).
- Hannah Hartig. Pew Research Center. September 25, 2020. “Before Ginsburg’s death, a majority of Americans viewed the Supreme Court as ‘middle of the road.’” https://www.pewresearch.org/fact-tank/2020/09/25/before-ginsburgs-death-a-majority-of-americans-viewed-the-supreme-court-as-middle-of-the-road/ (accessed October 10, 2021).
- Christopher J. Casillas, Peter K. Enns, and Patrick C. Wohlfarth. 2011. “How Public Opinion Constrains the U.S. Supreme Court.” American Journal of Political Science 55 (1): 74–88.
- Micheal W. Giles, Bethany Blackstone, and Richard L. Vining, Jr. 2008. “The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision Making.” The Journal of Politics 70 (2): 293–306.
- Ben Johnson and Logan Strother. 2021. “TRENDS: The Supreme Court’s (Surprising?) Indifference to Public Opinion.” Political Research Quarterly 74 (1): 18–34.