7.10.2013

SCOTUS Approval Ratings Leave Something to Be Desired...Or Do They?

Despite of, or maybe because of, recent events, Americans' approval of the Supreme Court is currently at an all-time low. From Rasmussen:
 
"The U.S. Supreme Court finished its term with big decisions on voting rights, affirmative action and same-sex marriage. Following those rulings, public approval of the court has fallen to the lowest level ever recorded in more than nine years of polling.
 
A new Rasmussen Reports national telephone survey finds that just 28% believe the Supreme Court is doing a good or an excellent job. At the same time, 30% rate its performance as poor. That’s the highest-ever poor rating. It’s also the first time ever that the poor ratings have topped the positive assessments. Thirty-nine percent (39%) give the court middling reviews and rate its performance as fair. (To see survey question wording, click here.) 
 
These numbers are even weaker than the numbers recorded following the Supreme Court ruling upholding the president’s health care law last year."
 
At first blush, and to the extent that the Supreme Court is supposed to reflect the values of the nation in its decisions, it would appear that the body is doing a poor job.

However, it may also be that it is doing a good job reflecting the majority on some specific topics (gay marriage, affirmative action) that happen to be the very topics that generate very strong opinions on either side of the political spectrum. Therefore, the Court could be reflecting the will of the majority while simultaneously providing fodder for majority dissatisfaction; in the current political environment, it isn't surprising that people would grasp more on decisions they disagree with than those they favor.
 
Another theory could be that the Supreme Court is making decisions it believes are just that are nonetheless unpopular with the public, and therefore would be difficult for politicians to act on. While this post isn't meant to address judicial activism, or the exact role of the courts, it is undoubtedly true that one of the reasons that Justices are not elected officials is so that they may interpret the law without subjecting themselves to the winds of national opinion. Therefore, they could well be doing their job without following the majority.

Some might give the Nine the benefit of the doubt and just go with the theory that they are following precedent without considering the national mood at all. Or maybe this is all as simple as everything coming out the way Justice Kennedy wants it to (though there were some interesting combinations of Justices forming majorities in some of the recent cases). Or maybe they are all being influenced by their own politics. Or maybe it is some combination of everything above.

Adding in the fact that the individual Justices don't all have the same motivations or styles, and the permutations quickly become too much for a legal, rather than a mathematical, mind to follow.

Of course, some polling on national opinions could help here (albeit slightly; while it could give data points on majority opinions, it wouldn't give us insights into how the Justices thought about those majority opinions, or if they believed them to be majority opinions, or if they even cared about them), but my intent in this post is to focus more on what the Court has actually done, how it can be interpreted, and why people may be viewing it so unfavorably. Indeed, what people believe about the Court, its role, and its motivations might be shaping opinions just as much, or more so, than any particular opinion.

In that endeavor, I have perhaps failed, as I haven't quite come to a definitive answer. And I would suspect that, if the question were put to them, the Nine would simply say that they decided based on their interpretations of the law - therefore we may never know what happened this term. In any case, the term has been an interesting one. And it is difficult to argue that the Court has been particularly partisan given its decisions. In this day and age, that is notable in and of itself...

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