The Supreme Court’s Low Approval Ratings Have Nothing to Do with Its Rulings

I am told frequently these days that the Supreme Court of the United States is “out of touch.” Having been taken over by the “hard right,” this argument runs, the Court has lost its vital connection to public opinion and, in consequence, has made itself unpopular from sea to shining sea. In 2018, the Court’s approval rating was 50 percent; now, it’s less well-regarded than is Joe Biden. Why has this happened? Because the Court’s new majority is “radical,” “cruel,” “fringe,” “extreme,” and even “illegitimate,” and the public has noticed.

Certainly, this is a convenient explanation for those who dislike the Court’s current approach. But is it true? Per “a survey conducted in April by researchers at Harvard, Stanford and the University of Texas” and written up this month in the New York Times, it is most decidedly not. As the study shows, there does not seem to be much daylight at all between how the Court has ruled this term — and, indeed, how it was expected to rule this term by its critics — and the preferences of the general public. As a matter of fact, the Court has been out of line with public opinion in only two of the cases from this term — and one of those cases was decided 9–0. Asked about Sackett v. EPA, an environmental case regarding the statutory scope of “waters,” 72 percent of Americans said that they wanted the statute to “be read broadly, to include things like wetlands,” with 28 percent saying that they wanted it to “be read narrowly, to include only things like streams, rivers and lakes.” In a complex decision, the Court disagreed 5–4, with all nine justices rejecting the EPA’s definition, but Sotomayor, Jackson, Kagan, and Kavanaugh dissenting from the majority opinion’s narrower determination that, to be covered, “wetlands” must be connected to a navigable body of water. Asked about Gonzalez v. Google, 72 percent of voters said that Google should be “held responsible for aiding and abetting terrorism for not removing content and accounts promoting terrorism”; unanimously, the Court disagreed. What, I wonder, should we conclude from that?

The other cases have come down exactly as the public wanted. Asked about Moore v. Harper, 55 percent of Americans contended that “state courts can exercise oversight over federal elections just like they do in other areas.” The Supreme Court agreed. Asked about Allen v. Milligan, a case that dealt with Section 2 of the Voting Rights Act, 53 percent of voters proposed that the state of Alabama “should be forced to redraw” its districts to ensure sufficient majority-minority representation. The Supreme Court agreed. Majorities also concurred with the Court’s rulings in Haaland v. Brackeen (a case related to the Indian Child Welfare Act), Andy Warhol Foundation for Visual Arts, Inc. v Goldsmith (a copyright case), and National Pork Producers Council v. Ross (an interstate-commerce case).

And if those cases had gone the other way? Well, that wouldn’t have told us a great deal, either: The gap between public approval and disapproval for Moore v. Harper was ten points; for Allen v. Milligan and Haaland v. Brackeen it was six points; for National Pork Producers Council v. Ross, it was four points. Only for Andy Warhol Foundation for Visual Arts, Inc. v Goldsmith, which was favored by 74 percent of respondents, would the opposite decision have set the public and the Court at odds. Clearly, the public does not share the press’s penchant for catastrophizing.

As for the four “blockbuster” cases whose holdings are yet to be announced? The Court’s conservative majority is predicted to be on the right side of public opinion in every single one. The Court is expected to strike down affirmative action; this has support from 69 percent of the public as applied to “private colleges and universities” and from 74 percent of the public as applied to “public colleges and universities.” The Court is expected to declare that President Biden’s student-loan-forgiveness order was not authorized by Congress; this has support from 50 percent of the public. The Court is expected to rule that “the First Amendment allows a web designer who objects to same-sex marriages to violate a state law that prohibits discrimination based on sexual orientation”; this has support from 51 percent of the public. The Court is expected to rule that “employers must make accommodations for their workers’ religious practices after a postal worker refused to work on Sundays for religious reasons”; this has support from 51 percent of the public. Are we really to believe that the public will be angry if it does not get its own way in these cases?

For clarity’s sake, I ought to reiterate here that I do not endorse the idea that the Supreme Court ought to follow public opinion. The law is the law is the law — whatever the polls might say. But the Times’ numbers do rather pour cold water on all the hype, don’t they? All told, one would do better to conclude that the diminishment in the Court’s approval numbers has had as much to do with the endless series of fake scandals that have been cooked up around it as with the recent decisions that the nine justices have offered up. After five years of ruthless demonization, it appears that the Court’s new majority has, indeed, grown unpopular. But whatever has caused that shift, it does not seem to be a close and indignant reading of the majority’s weekly work.