Illegitimate.
It’s a term increasingly thrown around in the modern state of American politics, but is often directed at the hyperpolarized state of Congress or an unpopular President. Rarely is the judiciary, which plays an outsized role in United States politics, implicated in such accusations. Fluctuations in the U.S. Supreme Court’s reputation are expected, especially after a landmark decision. Like clockwork, we saw dips in public opinion polling after the Court’s rulings on same-sex marriage and affirmative action in 2013 and 2015, respectively. The alarm bells were not yet sounded, as confidence in the institution itself remained intact.
But this time seems markedly different.
Confidence in the Supreme Court over time
Confidence in the U.S. Supreme Court. Gallup (2022)
In 2016 Republican Senate-majority leader Mitch McConnell refused to bring President Obama’s SCOTUS nominee to the Senate floor during an election year, citing the American people’s right to have a “say” in the court’s direction. This was followed by his complete reversal in 2020, another election year, when the Republicans in the Senate forced a vote on President Trump’s third high court nominee in his lone term just a few months before the election.
Earlier this year, in the months leading up to the overturning of Roe v. Wade, a source inside the high court leaked Justice Alito’s momentous draft opinion in Dobbs v. Jackson Women’s Health Organization. Although overshadowed by the notoriety of the Court’s radical docket, the leak was, without a doubt, unprecedented. Such disclosures at the highest levels of government are commonplace on Capitol Hill and 1600 Pennsylvania Avenue, but rarely in the courts.
In response to the leak, Clarence Thomas, an associate justice of the Court whose reputation is also shrouded by controversy, said, “When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally.”
Perhaps Justice Thomas is right, but it seems apparent that the lack of legitimacy results in greater part from the justices themselves and the processes that sat them in the nine most politically consequential seats in America rather than the disobedience of a single person. In this extraordinary moment in American history, Lincoln Park Strategies sought to better understand the Supreme Court legitimacy crisis and the paths the nation ought to take in response. Shortly after the release of the Dobbs decision, we surveyed 1,000 U.S. adults on their attitudes toward the Supreme Court. Their responses also give us insight into public opinion towards potential reforms to the court that are currently in the national conversation.
Unsurprisingly, most people are not too pleased. Overall, favorability for the court comes in at 44.7 (on a 0-100 scale). While men are more favorable, women across all races, incomes, education levels, and even party affiliations view SCOTUS far less favorably.
Mean favorability rating for SCOTUS
Moreover, our gender breakdown in overall favorability of the Supreme Court parallels the gender breakdown in our respondents’ view of the Dobbs decision.
Mean agreement vs. disagreement of Dobbs decision
While SCOTUS’s ideological split often plays a key role in determining the term’s docket and case outcomes, analysis from Harvard University’s Supreme Court Public Opinion Project shows that justices almost always take popular opinion into account in support of maintaining (you guessed it!) institutional legitimacy. For example, in response to “massive resistance” from southern states, justices ensured that the 1954 decision to desegregate schools in Brown v. Board of Education was unanimous to avoid doubts about the validity of the ruling.
The Court’s legitimacy comes in large part from its independence from other political processes in Washington. Without this public expectation, SCOTUS is in crisis. We asked respondents whether they felt that the justices make their decisions based purely on their view of the Constitution or based on other considerations. Justices’ view of the Constitution received an average of 50.4 points, with a meaningful split along party lines.
Mean score for how much of the conservative majority's
decisions has to do with the Constitution.
By now, the alarm bells should be sounding loud and clear. The Court, as Alexander Hamilton put it, “has no influence over either the sword or the purse.” If the nation’s confidence in the Supreme Court wanes, so too does the Court’s influence. In practice, this may mean more states enacting laws in violation of SCOTUS precedent or, more concerningly, lower courts rejecting the opinion of the Supreme Court in their decisions. Put differently, not good times.
The question, then, is whether voters support their lawmakers in Congress doing something about it. We examined four major reforms which are in the national conversation: (1) Establishing a stricter code of ethics which ensures that no justice can hear a case in which they have a conflict of interest, (2) setting an age limit that prevents justices from serving after their 80th birthday, (3) limiting SCOTUS terms to 18 or 22 years, and (4) expanding the number of justices from 9 to 13 to match the current number of U.S. circuit courts. Our data shows that over two-thirds of Americans support at least one of these potential SCOTUS reforms.
Support level for potential changes to the Supreme Court
Support for expanding the court, which follows the original reasoning behind having the number of justices match the number of circuit courts, is highly split along party lines. Ending life appointments, on the other hand, is much more palatable among respondents across political beliefs. The framers of the U.S. Constitution implemented life tenures to insulate justices from political pressures and preserve judicial independence. Given that the SCOTUS nomination procedure is now much more partisan after the elimination of the filibuster, justices are becoming younger, more ideologically divided, and living longer–not exactly what the framers had in mind. Justice Amy Coney Barrett, for example, whose appointment to the bench was controversial at best, turned 50 this year, and can expect at least three decades on the court. This allows for progressively less “say” in the court’s direction by the American people, as posited by Senator McConnell in 2016.
The option with the highest level of support, establishing a justice code of ethics, seems ludicrously fundamental. The nine justices on the Supreme Court are the only federal judges that are not required to follow the Code of Conduct for U.S. Judges. When asked about how he handles ethical questions surrounding recusal, former Justice Steven Breyer said he “[calls] an ethics professor.” Without meaningful oversight, we end up in situations akin to Justice Thomas participating in elections fraud cases in which his spouse is implicated.
Despite widespread public support, these reforms, if proposed, will likely end up in gridlock. The Republican Party fought tooth and nail for the past four decades to cement their conservative supermajority and do not appear willing to relinquish the power they currently hold. The onus is, unfortunately, left to the Democratic Party, which hasn’t had an overly stellar election year since 2008. Whether or not change is possible is unclear, but it is imperative that lawmakers, at the very least, hear their constituents and try. A functioning judiciary is the backbone of American democracy; as an institution with the enormous power to tip the scales of justice, the Supreme Court cannot risk illegitimacy.