A recent Gallup poll found that the Supreme Court’s approval rating dropped by 40% (with 53% disagreeing). Gallup has the lowest court rating in twenty years which is questionable. Last year, when the court approval rating reached a long-term high of 58%, I noted that its growing popularity made it less vulnerable to political attacks to influence it, such as court-packing. Now that the courts have become much less popular, it is reasonable to ask whether the opposite is true: could its newly found unpopularity make it even more vulnerable to court-packing and other similar measures?
I think the answer to this question is “yes”. Other things being equal, a relatively unpopular court has less political capital, which is preferred by a large majority of voters. The more people dislike the court, the less opposition will take action to suppress its authority or even completely neutral (possible outcome of court-packing).
Of course, judges seem to be concerned about the potential damage to their position, which is why many of them have recently made public speeches and statements opposing the notion that their verdict is “political”. Although they do not want to admit it, the judges acknowledge that the court operates within political constraints. If they insult too many people, there could be a political reaction that the court will be unable to give weather.
That said, I think the court is in serious danger of reaching this conclusion prematurely. While this may now be more risky than usual, that vulnerability may not be long-lasting. As I mentioned in a 2018 post on the subject, there is a long history of the court’s reputation being damaged due to controversial judgments and other incidents, just to get back quickly. And opponents of the court will probably find it very difficult to take advantage of the window of his weakness.
The previous record-low approval rating of 42% was first in 2005, following the court’s extremely unpopular ruling. Kellogg vs. City of New London. But after that the public position of the court was quickly restored. Why I literally wrote the book Kello It was a terrible decision. But even I cannot seriously claim that this judgment has done long-term damage to the public legitimacy of the court. There is a similar story about the public reaction to such controversial and widely disliked verdicts Rowe vs. Wade, Bush v. Upstairs, Citizen United, School prayer cases, flag burning cases and others.
In each of these situations, biased critics of the ruling predicted – or at least hoped – it would do long-term damage to the court’s reputation. But, every time, the public’s attention shifts to other issues and the court’s approval rating is soon restored.
The reason for the recent slip in court popularity is not entirely clear. But it could be related to his unpopular recent decision in the Texas abortion case, and perhaps the decision to overturn the CDC eviction stay. SB8 – Judges allowing Texas anti-abortion laws to take effect are extremely unpopular, with a majority (53%) of the public supporting President Biden’s amended eviction moratorium (thought, interestingly, the plural of 45% also believed that the CDC did not have the power to impose a moratorium).
My own opinion is that the eviction stay order is correct. Although I do not agree with the SB8 ruling and strongly oppose the SB8, I also think it was consistent with the precedent of the previous Supreme Court and thus not as serious as many critics claim. But in both cases my opinion was inconsistent with the majority opinion.
If these and other recent rulings are the reason for the court’s growing popularity, it could easily return to the headlines and divert public attention to other issues. The same thing has happened many times before.
It is possible that this time will be different, and the court approval rating will be lower, or continue to slide. But, given the poor track record of similar predictions of court political collapse, I would believe that this is only happening when the evidence becomes much stronger (e.g. – if court approval ratings have been low for many months or even years).
If the court’s public standing is likely to return, Democratic advocates may have a narrow window of opportunity to push them through court-packing and other similar measures. If they want to neutralize the court, they have to kick it off when it closes!
Opinions are now able to garner enough votes against them, considering the Democrats’ own divisions over court-packing (as opposed to the idea of the main moderate members of Congress), unless the courts become more popular. In addition, the fight against court-packing may be picked up by democratic forces and political capital that they consider more important objectives (such as passing a huge spending bill).
Finally, although the court’s popularity is now low, the same can be said for its potential democratic opponents. President Biden’s approval rating dropped by about 5% and about%% disagreed. It’s better than the court, but not too much. Congressional approval ratings remain volatile in the 20-30% range (with more than 60% disapproval), where it has long been. A bad approval rating by court standards would actually be a great improvement for the law branch! With a recognized weak court on the one hand and a clash between Biden and Democratic congressional leaders on the other, it is not clear which side will win.
My significant prediction is that the popularity of the Supreme Court will return, and that time বেশির most Democrats ব্য will spend their time on politically promising issues rather than court-packing. The court is now weaker than before; But not so much that the relatively unpopular president and even the more unpopular thin Congress can successfully attack the majority.
But I admit that I can be wrong in one or both cases. If the court’s approval rating is further downgraded, and Biden is selected, the political incentives may change – especially if the court makes an extremely extremely unpleasant decision. I can certainly imagine a situation where the court suffers a real “crisis of legitimacy” and Biden (or the future president) may be inspired to emulate the FDR’s 1937 neutral effort. I have emphasized before that there are major political obstacles to court-packing and other comprehensive efforts to weaken the Supreme Court. But the possibility of such a showdown is unlikely to go away completely, for some time to come.
The threat of political retaliation may encourage the court to avoid highly unpleasant judgments. But it is important to remember that those limitations still leave judges with a lot of discretion. The general public knows very little or nothing about most of the Supreme Court ruling (including some important issues). A controversial decision that divides the public on the basis of biased ideology can upset the political spectrum on the one hand, but also increase the popularity of the court on the other. Only that judgment is both highly visible And Isolating people far more than their attraction, creates a really serious risk for judges. And, as discussed earlier, even its effects can fade over time.
To avoid misunderstandings, I should emphasize that the popularity of the court is actually a weak guide to whether it is doing a good job. What I wrote about that last year still applies today:
The high approval ratings of the courts do not necessarily prove that the judges are doing a good job. Voters’ assessments of the court’s effectiveness can easily be misunderstood. The majority of the public has little knowledge and understanding of court work. The 2018 C-Span survey found that 52% could not even name a single Supreme Court judge. Data from other surveys finds widespread public ignorance about even the most basic aspects of the constitution, which judges are supposed to interpret and apply.
Although I personally agree (albeit in no way) with most of the major court rulings, this would be inconsistent.nt For me to cite the high approval rating of the court is proof that I am correct in this case. After all, I am the person who wrote it Democracy and Political Ignorance: Why is Small Government Smart?, Outlines the dangers of voter ignorance.
And, for that matter, I’m far from a completely unappreciated fan of Roberts Court work. Among other things, I deny its sustainability and the double standard expansion that inevitably exempts immigration policy from most of the constitutional constraints that limit other practices of government power.
Just as high approval ratings do not necessarily prove that the court is doing a good job, so low individuals certainly do not prove that it is doing badly. My own opinion is that the court’s recent performance is “good enough for government work” and that if the power of judicial review is neutralized by court-packing, it is much better than what we get. But there is plenty of room for improvement!