In September, polls showed that public approval of the Supreme Court was at around 37 percent—the lowest number since some of this polling had begun. That was perhaps not surprising for a court that—within months of having been fully stacked with Republican ideologues—had gutted both the Voting Rights Act and union power, had reversed position on COVID lockdown orders while changing religious liberty law in a way that could only be explained by Republican stacking, and then issued a string of unreasoned ideological orders on its emergency docket. Maybe the straw that broke the pollsters back was the unsigned brief decision that allowed Texas to ban abortions at six weeks, despite the law’s lack of popularity. But new polling out last week shows that September’s numbers weren’t a one-off: The new numbers tell us that only 32 percent of those polled believe the highest court in the land is motivated by the law. If you believe that public polling about the court should matter, those numbers should worry the justices just as much as the plummeting approval numbers from September.
This shouldn’t be difficult. A court that controls its own docket and assigns its own opinions has almost complete control of the public narrative about its own work product. The problem is perhaps precisely that—in response to September’s terrible number, many of the six justices in the conservative supermajority made different choices about how to manage that conversation and those optics. Some of the Justices started to panic and do deeply stupid things, like blaming the press for their own partisan behaviors while standing next to the guy who single-handedly treated the court like his Bond villain kittycat, or by giving intemperate speeches in which they attempted to lay the blame for declining public trust on the legal academy and individual journalists. I suppose when the public en masse loses confidence in your neutrality and objectivity, a patently cynical strategy is to blame the media and the public, rather than modify your own behavior.
But as they digested these new numbers, other justices started to panic and do smarter things—like respond to the criticism it had been receiving. One of the broad complaints levied at this court last fall was its overreliance on the shadow docket, the fast track way the court resolves exigent issues. There’s always been an emergency docket. But suddenly it was being used for all the things, seemingly so the worst things could be done late at night without proper argument or reasoned explanation. The most stunning example of this court’s absurd use of the docket was its decision not to hear arguments this past September in S.B. 8, Texas’ nullification of Roe v. Wade. As Justice Elena Kagan, dissenting in that decision not to pause the Texas law, wrote: The increased reliance upon the shadow docket “every day becomes more unreasoned, inconsistent and impossible to defend.” And so, perhaps in response to the criticism of both the methodology and the rulings, cooler heads at the court decided to hear public arguments, with proper briefing, on the same issue this past month. Proof positive that there are some things the court can do when the public comes to think about the justices as partisan hacks, chief among them not behaving like partisan hacks.
Evidently, it hasn’t been enough. That new Quinnipiac polling, suggesting that 60 percent of the public now believes the court to be motivated principally by politics, is almost more striking than the tanking approval ratings because it’s remarkably consistent across partisan lines: At present, 67 percent of Democrats, 62 percent of independents, and 56 percent of Republicans agreed on this statement. I can’t personally think of another way to read those numbers other than to say that most Americans believe the justices to be a bunch of partisan hacks. That fact may be good news or bad news depending on your own personal political viewpoint, but I can tell you one thing: It’s terrible for the court, and for the rule of law that gets backstopped there.
The most important question driving the decisions that will rain down in the coming weeks and months is who will win the day: Chief Justice John Roberts, and whatever incrementalist-adjacent jurists he can muster to the cause, or Justice Samuel Alito and the court’s wheels-up carpe diem faction. Those coalitions have been swinging around wildly these past months, but it now appears that Justices Amy Coney Barrett and Brett Kavanaugh really don’t like it when the public sees them as Federalist Society sock puppets, and that—at least on occasion—they modulate their words and actions as a result.
Meanwhile, the Biden commission on court reform, which had at least initially signaled that it is too preoccupied with the need for court legitimacy to redress the causes of court illegitimacy, is going to be delayed by about a month in its final report. The idea of term limits appears to have garnered more support in recent weeks. But none of this changes the immediate calculus for nine justices who are confronted with a public that has not only lost confidence in the court but seems to believe it to be captured entirely by political interests.
And it couldn’t be happening at a more critical time. The S.B. 8 decision is likely be handed down imminently. The court is poised to hear the most consequential abortion case in decades in just over a week. And as professor Stephen Vladeck points out in his reflections on the shadow docket, the court relies on public legitimacy for its power. If there’s a repeat performance of election 2020 that goes to the high court for resolution, it is in nobody’s interest if that court is seen as universally bought and paid for. As the court noted in 1992, in Planned Parenthood v. Casey, the abortion case that reaffirmed Roe, “The Court’s power lies … in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.”
Confidence in the court isn’t something the justices can demand. It is not something about which justices can point angry fingers at the media, or the academy. Maintaining public confidence in an independent judiciary lies in large part in conducting oneself like a member of an independent judiciary. Perhaps it’s just not something that is expected when we have six justices who want to end Roe v. Wade, wildly expand gun rights, hobble the administrative state, and restrict voting rights, right this second, and several of them have made it rather plain that the real project lies in making constitutional hay while the sun shines. But it matters that the public have a court that it can respect. It’s wholly within the control of the justices to decide whether to look like politicians or jurists. The general public may have low information and lofty aspirations about the Supreme Court, but this new polling suggests that they are pretty savvy about what happens when it actually happens before their eyes.
