The New Republic

The Supreme Court's Looming Legitimacy Crisis

Real Clear Politics calculates President Bush's average approval rating at 31 percent. Congress comes in even lower, at 25. But not every government institution is polling badly. In a recent Gallup poll, 51 percent of Americans approved of the performance of the Supreme Court of the United States.

Yes, the justices may be tackling hot-button issues like race in school placement and partial-birth abortion. Yes, conservatives may shriek about judicial activism and liberals may wring their hands that the sky is falling and that Roe v. Wade hangs by a thread. But the public isn't buying any of it. The court has some serious Teflon.

Or not.

When Gallup's pollsters ask a slightly different question, they get a dramatically different figure. Gallup this month released polling data on public confidence in American institutions, including the Supreme Court. Only 34 percent of those surveyed reported having "a great deal" or "quite a lot" of confidence in the court. This figure is the lowest since Gallup started tracking this particular metric back in 1973. The Court's confidence rating has only once before dipped below 40 percent. Yet in the past few years, confidence in the Court has been in steep decline. If you take these numbers seriously, the Court has an incipient legitimacy crisis on its hands.

So which is it? Are Americans somehow losing confidence in their Court or cheering it on? My guess is that they're doing both at the same time.

The Court's high approval rating is certainly no aberration. In Gallup polling, it has fluctuated since 2000 from a high of 62 percent to an outlying and never-repeated low of 42 percent, most often falling somewhere between 50 and 60 percent. Gallup actually polled the Court's approval twice in May. The first time, using the usual formulation, the Court garnered 51 percent approval; the second time, using a slightly different question, the figure was even higher, at 63 percent, including 55 percent of Democrats. By contrast, only 8 percent of Democrats approve of Bush's performance.

Other recent polls likewise suggest significant public contentment with the Court's job performance. Quinnipiac University's most recent poll has the Court at 58 percent. A CBS News/New York Times poll in March showed that 44 percent of Americans think that Bush's nominees to the Court have been "about right" politically, with 24 percent thinking they were too conservative and 17 percent thinking they were not conservative enough. A Gallup poll last fall found a similar plurality (43 percent) thinking the Court's politics were "about right," with 31 percent believing it "too conservative" and 21 percent believing it "too liberal."

The Court's approval rating tends to stay high because its actions stray much less from the center of gravity of American politics than either its conservative or liberal critics imagine. Partial-birth abortion laws may offend liberal constituencies, but they are overwhelmingly popular with the public at large, for example. Social conservatives may get riled up in defense of sodomy laws, but the public doesn't. In the most important and high-profile cases, the Court has quite simply has not taken dramatic steps that deeply offend the majority of Americans. In many ways, in fact, it reflects the center of gravity of American politics better than either party's caucus in either house of Congress.

So how then to understand the declining institutional confidence figure? This number has shown more decided trends over time--and since 2002 the trend has been a sharp and continuous decline. Confidence in the Court rose steadily over the course of the 1990s, from its previous trough of 39 percent in 1991 to around 50 percent in 1997; it stayed in that range through June 2002, weathering the firestorm around Bush v. Gore without much of a flicker. But then it started falling.

One could simply dismiss this drop. It comes amid a much-broader decline in public confidence in institutions over the same period. In the same Gallup poll that this month showed confidence in the Court eroding to record lows, for example, confidence in Congress had plummeted to an all-time low of 14 percent, and the presidency, the press, labor unions, the medical system, and the criminal justice system all took hits too. It is possible that confidence in the Court is being dragged down by collapsing confidence in institutions in general. People are grouchy, this explanation might go, and the Court is feeling their wrath a lot less than are other institutions. Interestingly, other confidence measures concerning the Court have not shown the same degree of slippage; when Gallup asks about confidence in "the judicial branch, headed by the U.S. Supreme Court" and allows respondents to express a "fair amount" of confidence, the confidence rating skyrockets and the decline seems far less dramatic. Maybe this one particular trend line is just noise.

But there is, at least, some reason to take it more seriously than that. For one thing, it's been going on for the past five years. For another, it coincides with a protracted period in which the Court has presented itself as just another polarized institution in American life. The justices split 5-to-4 along ideological lines in case after case, writing bitter opinions laden with political-sounding rhetoric. Both Democrats and Republicans fight over the Court, and the lower courts for that matter, as though they were simply a political prize, rather than a branch of government supposedly outside of politics. One has to worry, at least a little bit, that the Court's institutional prestige is suffering as a consequence.

Earlier in this Supreme Court term, TNR's Jeffrey Rosen published an interview with Chief Justice John Roberts in which Roberts fretted about the tendency of justices to write separate opinions and to make a fetish of their own jurisprudence, rather than the jurisprudence of the Court as a whole. "If the Court in [Chief Justice John] Marshall's era had issued decisions in important cases the way this Court has over the part thirty years, we would not have a Supreme Court today of the sort that we have," he said. "That suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up."

Perhaps it is this erosion that the declining institutional confidence rating is capturing--even as the continued high approval rating captures a general public satisfaction with the substance of what the Court is actually doing. One can, after all, harbor no special anxiety about the aggregate direction of the Court's decisions and still find oneself disgusted by the oh-so-predictable manner in which the justices have been dividing--and will likely divide in coming cases about campaign finance and race-conscious public school placements. One can agree with a lot of what the Court does, in other words, and still recognize that this is not, in fact, an institution insulated from the grime.

In the wake of Bush v. Gore, it became something of a vogue among liberal law professors to declare that the Supreme Court had lost its legitimacy. I objected. "That claim is subject to empirical testing. And the tests prove it false--that is, if legitimacy is regarded as a function of public opinion," I wrote, together with Peter Berkowitz. Citing this very Gallup trend line and other data, we concluded, "The Court has enjoyed a remarkably stable level of public confidence and trust over a long period of time"--one that the election controversy had not disrupted. Now, however, the very effect that did not exist then is manifesting itself significantly. With approval of the Court still high, it's too early to say that the Court's public standing is in trouble. But it's not too early to wonder if its Teflon may be starting to wear thin.