Supreme Court

Supreme Court's Growing Popularity Reduces the Risk of Court-Packing and Other Threats to Judicial Review

Its approval rating - 58 percent - is at its highest level since 2009, far outstripping the other two branches of government. That doesn't prove the justices are doing a good job, but will make it harder to pursue court-packing or other attacks on the Court.

|The Volokh Conspiracy |

The Supreme Court.

 

A recent Gallup poll shows that the Supreme Court has an approval rating (58%) that the other two branches of government would kill for. This is the Court's highest rating in the Gallup poll since 2009.  And the Court's popularity easily outstrips the highly unpopular President Trump and Congress.

Even more interestingly, the Court is about equally popular among Republicans (60% approval), Democrats (56) and independents (57). This is a result of a recent rise in popularity among Democrats, combined with a modest decline among Republicans.

While the 58 percent figure is the highest in over a decade, it is actually only slightly higher than the 54% approval rating the Court enjoyed in Gallup's previous poll on this issue, in September 2019. This suggests the Court's popularity is not primarily a function of this year's decisions, but is the result of more deeply rooted factors.

The Court's high approval ratings do not necessarily prove that the justices are doing a good job. Voters' assessments of the Court's performance could easily be wrong. Most of the public has little knowledge and understanding of the Court's work. A 2018 C-SPAN poll found that 52% cannot even name a single Supreme Court justice. Other survey data finds widespread public ignorance about even basic aspects of the Constitution, which the justices are supposed to interpret and enforce.

Though I personally agree with most (though by no means all) of the Court's major rulings this term, it would be inconsistent for me to cite the court's high approval rating as proof that I'm right about these cases. After all, I'm the person who wrote Democracy and Political Ignorance: Why Smaller Government is Smarter, outlining the dangers of voter ignornace.

And, for what it is worth, I am far from a completely uncritical admirer of the Roberts Court's work. Among other things, I decry its perpetuation and extension of double standards that indefensibly exempt immigration policy from most of the constitutional constraints that limit other exercises of government power.

That said, the Court's high approval ratings do undermine arguments that the Court is about to suffer a "legitimacy crisis" or that its reputation would never recover from the contentious Kavanaugh nomination hearings. Claims that that would happen join the list of other predictions that one or another controversial action or nomination would permanently damage the Court's public standing (Roe v. Wade, the defeat of the Bork nomination, Bush v. Gore, Citizens United, and so on).  The Court has in fact passed through numerous such controversies with little or no damage to its long-term standing. Both liberals and conservatives tend to overestimate the public's willingness to hold grudges against the Court for decisions and nominations that are hated by one side of the political spectrum or the other. The Court's public standing wasn't even much impaired by its widely hated ruling in Kelo v. New London (2005), which was almost universally despised by the public on both right and left.

Should Joe Biden win the presidential election, the Court's continued popularity will also make it more difficult for Democrats to pursue court packing or other radical measures to curb the power of the Court. Some progressive activists have been trying to revive this dangerous idea, despite Biden's own stated opposition to it. Should Biden reverse his stance and try to pursue court-packing after all, he might suffer a political reversal similar to that which FDR endured in 1937 when his own court-packing plan was defeated by a widespread political backlash against it.

Media reports indicate that the Democratic platform will call for "structural change" in the federal courts, as a response to various real and imagined GOP misdeeds, such as the GOP-controlled Senate's refusal to hold hearings on President Obama's nomination of Merrick Garland in 2016. "Structural change" is a vague term that could encompass a wide range of ideas, ranging from awful ones such as court-packing (I summarized its dangers here, here, and here), to entirely reasonable reforms such as imposing term limits on Supreme Court justices. The latter idea enjoys widespread support among legal scholars across the political spectrum, myself included. I hope that the Court's popularity will lead Democrats to embrace the relatively reasonable end of this spectrum, while eschewing court-packing and other similar ideas that would have the predictable effect of undermining judicial review as an effective check on government power.

While the Supreme Court's high public standing increases the political costs of attempts at court-packing or other radical measures against the judiciary, the justices are not out of the woods yet. If Biden wins the election and chooses to make court-packing a major part of his political agenda, many Democrats and Democratic-leaning independents might support it out of partisan loyalty, even if they did not previously have strong negative feelings about the Court. Voters and activists often act on cues from party leaders, even if doing so is inconsistent with those voters' and parties' previous positions. Consider the way many Republicans have come to support Trump's positions on a variety of issues (such as trade, deficits and government spending) where the president's policies are inconsistent with previous GOP commitments.

And while most of the general public seems reasonably content with the Court's work, many liberal activists remain angry about it. Committed activists often have a disproportionate impact on the Democratic Party's policies (as is also true in the GOP). Moreover, Democratic anger at the Court could increase again if the justices make decisions that strike down some major part of the party's agenda.

The combination of these three factors—partisan bias, activist anger, and new decisions that might anger Democrats —could potentially lead Biden to reverse his position on court-packing, or otherwise trigger the sort of dangerous scenario I envisioned in this 2018 post (with Biden playing the role I ascribed to a potential President Elizabeth Warren):

In 2022, President Elizabeth Warren, backed by a Democratic-controlled Congress, passes far-reaching campaign finance reform legislation that progressives consider to be an important part of their agenda of curbing the inordinate political power of the wealthy. A 5-4 Supreme Court decision (with the justices divided along ideological lines) strikes down key parts of the legislation.

President Warren, in turn, announces that she will not obey the ruling, and will continue to enforce the law. She argues that this is proper because two of the five justices in the majority are "illegitimate": Neil Gorsuch because he occupies a seat that was "stolen" from Merrick Garland, and Kavanaugh because he committed perjury during his confirmation hearings, when he denied the sexual assault accusation (and perhaps on other matters as well). The president could buttress her position by citing (selectively chosen) quotations from widely admired nineteenth century presidents (including Abraham Lincoln) arguing that the president need not always obey court decisions. She could also rely on similar claims by modern-day "departmentalist" legal scholars [including some conservatives]…

Some more moderate Democrats worry that the president is going too far. But most rally to her side, in her struggle against an "illegitimate" Supreme Court that has become a "puppet of the rich and powerful." A high-stakes constitutional crisis ensues.

Instead of refusing to obey such a ruling (as I posited above), President Biden could respond with a court-packing plan, with the aim of appointing new justices who would reverse the new decision (and other precedents liberal Democrats strongly oppose). This would be a close analogue to FDR's 1937 court-packing effort, which was intended to create a Court that would reverse various rulings striking down parts of the New Deal.

I believe that a Biden victory in this year's election is preferable to a Trump win. But that doesn't mean the former is without risk.

If Trump unexpectedly wins the election, one can also imagine the Republicans trying to pack the court in order to appease conservative anger over recent decisions on gay rights, abortion, and DACA, which went against them. It's worth noting that recent debates over court-packing began with a 2017 proposal by conservative legal scholar Steve Calabresi, in which he and coauthor Shams Hirji argued that the GOP should pack the lower federal courts (for the record, I strongly opposed the idea at the time, just as I now oppose Democratic court-packing plans). One can certainly imagine frustrated conservatives reviving such ideas.

While such scenarios remain possible, the Court's continued popularity makes it more risky for any president to pursue them.  In addition, Biden is less temperamentally inclined to take such risks than a hard-core left-winger like Warren (or Bernie Sanders) might be. For his part, Trump could not push through a successful right-wing court-packing plan so long as Democrats continue to control the House of Representatives (which seems highly likely even if Trump unexpectedly pulls off a narrow reelection win).

It would be foolish to imagine that court-packing and other threats to judicial review have completely disappeared. But the Court's continued and growing popularity does significantly reduce the danger.

NEXT: "Second Amendment Rights of the Successfully Treated/Former 'Mentally Ill'"

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  1. You act like it matters if court packing is popular. It doesn’t. Dems pack the court and they get everything they want forever, so a short term political hit is worth it.

    1. Roger Taney thought the same….

    2. It doesn’t work that way, and that’s part of the reason why court packing is so unpopular. What actually happens is a tit-for-tat that ultimately results in a 35 member Supreme Court or something.

      One of the things I think partisans on both sides don’t really understand is that it is very rare to have a period of extended rule by one party at the national level. Under normal circumstances, even in a period of dominance, the other party wins occasionally. Which means that sorts of procedural trickery that can be easily avenged when the other party is in power are not generally advisable.

  2. The real question is how many can name one member of the court?

    Put that into the context of this….

  3. Term limits on Supreme Court justices would require a constitutional amendment. Court-packing would not.

  4. Perhaps the Court is popular because the tend not to yell at each other.

  5. Fascinating. Judge Learned Hand always believed the only way for the Supreme Court to maintain legitimacy was to get out of making value judgments, something the Supremes have continued to do for some time. This year, from my read of the opinions, Roberts did his best to stand by procedural issues and away from making value announcements. Seems that worked. And why not- the Court shouldn’t be the one deciding policy no matter how badly anyone wants it to. Roberts very expertly threw issue after issue back at the branches were such judgments should be made. Bravo.

  6. The public perception of the court as Robert’s main concern. Sounds like his plan is working. I would counter that the court isn’t meant to work out of public popularity, but that is the way it is operating so that is what we get.

    1. Roberts is much smarter on these issues than some members of his party.

  7. Historically, the Democratic party has been entirely willing to undertake unpopular actions, in order to create hard to reverse victories, even if it cost them for an election cycle or two. And they’ve got the party discipline to force members of Congress to take politically suicidal votes. Remember John Dingell, NRA board member, voting for the ’94 ‘assault weapon’ bill?

    Whether this is due to a willingness to accept short term costs for long term gains, or a simple inability to admit that anything they want really badly is unpopular, I can’t say. I think it’s a mix, actually.

    Either way, betting that they won’t pack the Court just because the Court is more popular than they are is a fool’s bet.

    1. And they’ve got the party discipline to force members of Congress to take politically suicidal votes. Remember John Dingell, NRA board member, voting for the ’94 ‘assault weapon’ bill?

      Um, I don’t think you understand the concept of suicide. Dingell served in Congress until 2014 — 20 years after that vote. Doesn’t sound “politically suicidal” at all.

      (Also, you mischaracterize the situation, shockingly. He opposed the inclusion of the AWB in the bill. He voted for a popular anti-crime bill despite the inclusion of the AWB.)

      1. I didn’t say he supported it. But he voted for the bill with it included.

        And you’re right, and I’m wrong; He was one of the forced votes who didn’t lose their seat, just his seat on the NRA board. Plenty of others ended up in retirement as a result, he just ended up hated by his former allies.

  8. If Trump unexpectedly wins the election, one can also imagine the Republicans trying to pack the court in order to appease conservative anger over recent decisions on gay rights, abortion, and DACA, which went against them.

    Sure one could imagine it, in the same sense as one could imagine Ted Cruz in a pink tutu, expanded to the size of a T Rex, and singing Boogie Woogie Bugle Boy. (Sorry if that put you off your dinner.)

    But it is roughly as likely as a giant meteorite strike by the end of the year. It’s unlikely. And the reason it’s unlikely is that they only have to wait for RBG to die, to get a 6-3 majority, which will usually be plenty.

    Moreover, the side that packs the Supreme Court knows that when the other side gets in, they can repack it. You only pack it if you’re confident the other side will never get in again. Only one side thinks that and it’s not the GOP. The GOP always expects to lose.

    And moremoreover, while I’m passing, packing SCOTUS is very much contrary to Dem interests. Sure there is a cautious “conservative” majority, but there are way more precedents that the liberals want to protect than the other way round. With Roberts the stare decisis king, those precedents have a half life of at least a century, perhaps two. Once the Dems push that packing button, all those precedents are at stake. If they were ever to lose.

    1. Sure one could imagine it, in the same sense as one could imagine Ted Cruz in a pink tutu, expanded to the size of a T Rex, and singing Boogie Woogie Bugle Boy. (Sorry if that put you off your dinner.)

      It did, but it was worth it.

      Well done.

  9. Yes, it’s extremely unlikely that the Republicans would pack the Court. Too many internal divisions, too many Republican members of Congress who like left-wing decisions, for the GOP caucus to unite on such an action.

    I wouldn’t count on the Democrats deciding that it’s contrary to their interests, though. Sure, it would be a stupid move, sure to backfire, if done in isolation.

    But I think the Democrats only used to think the other side would get back into power. Trump broke them of that notion. Now they don’t see it as something that will naturally happen, but as something they’d need to engineer.

    Done as part of a program of partisan entrenchment, Court packing makes a certain amount of sense. You pack the Court first, to obtain a rubber stamp for the rest of the package, such as campaign censorship laws that would violate current 1st amendment jurisprudence.

    You don’t do it because you expect to hold onto power forever. You do it so that you can hold onto power forever.

    1. Done as part of a program of partisan entrenchment, Court packing makes a certain amount of sense. You pack the Court first, to obtain a rubber stamp for the rest of the package, such as campaign censorship laws that would violate current 1st amendment jurisprudence.

      You don’t do it because you expect to hold onto power forever. You do it so that you can hold onto power forever.

      You do realize that this is exactly the Republican strategy with respect to the courts, as well as other items like voter suppression and gerrymandering. Entrench yourself while you can and then argue with a straight face that changing that is a “political question,” to be dealt with by exactly those who have entrenched themselves against the will of the majority.

      Some self-awareness, please.

      1. Well, except for the fact that the Republican strategy with respect to the courts is to merely fill vacancies as they occur, while in a position to do so. The worst they’ve done so far was to not vote on a nominee they were entitled to vote down. The horror! If Trump hadn’t won that election you’d have thanked them for letting Hillary fill the slot.

        And you’ve had to define down “vote suppression” from turning fire hoses and dogs on people attempting to vote, (That’s the sort of vote suppression Democrats used to practice.) to merely requiring voters to actually prove they’re who they claim they are, or not having “enough” days of early voting.

        While “gerrymandering” now includes NOT gerrymandering in favor of Democrats.

        All you have to do is look back at 2018 to see how solidly the Republicans “entrenched” themselves.

        Should Democrats take the White house and Congress, you’ll see some real entrenchment action over the next couple of years; Court packing, naturalizing illegal aliens, legalizing practices like vote harvesting.

        And you’ll cheer every step of it, I expect.

        1. “All you have to do is look back at 2018 to see how solidly the Republicans “entrenched” themselves.”

          Uh, yeah, look at WI then.

        2. While “gerrymandering” now includes NOT gerrymandering in favor of Democrats.

          Yes, Brett. I know what your definition of “in favor of Democrats” is.

          Giving Democrats seats more or less proportional to their share of the votes is, in your warped definition, “favoring the Democrats.” Just amazing, and you see nothing wrong with it.

          And I define “vote suppression” as any sensible person would – setting up obstacles whose only purpose is to make it difficult for likely Democratic voters to vote, while screaming lies about vote fraud.

          You’re absurd.

          I guess you believe Trump really carried CA in 2016.

          1. Having a govt issued ID with your address on it, is an obstruction. Got it.

            1. So you’re a believer in the vote fraud myth? Got it.

              1. you speak of obstructions. at least name one

                1. Plenty of examples. Here’s a woman who managed to register, but needed a nonprofit to pay for her fees and pay to locate her birth certificate:
                  https://www.npr.org/2018/09/07/644648955/for-older-voters-getting-the-right-id-can-be-especially-tough

                  Also look up Ruby Barber of Texas.

    2. I think there are plenty of Democrats who think this is a bad idea. They don’t say anything, because there are some extremely loud and obnoxious partisans who are ready to flay anyone who comes out against it, but if it were actually proposed, it wouldn’t pass.

      1. I think it’s an awful idea.

        But I’m a pretty nonstandard leftist, despite what folks around here think.

  10. I don’t understand the power of the court. Congress has much more power. The would rather the courts make the law they don’t want to.
    The fallacy of Marbarry v Madison. The court declaring themselves the final arbiter of what is/is not constitutional. Congress can declare human life begins at conception, and SCOTUS could do nothing to stop them.
    Of course it is much easier to get a 5/4 decision than half the House and 60 senators to agree to anything.

    1. Amazing the people who come on this legal blog and argue that the problem is the keystone decision on American judicial review.

      Which, BTW, there was English precedent for. And which most republics worldwide have adopted as a good idea.

    2. An institution has as much power as competing institutions are willing to let it exercise. Congress is the most powerful branch under our Constitution: It can remove members of the other branches, but they can’t return the favor. It can enact laws over the objection of the President, and, with the agreement of states, alter the Constitution over the objection of both Presidents and courts.

      But it’s run by people who abhor being held responsible for anything, because if you’re responsible, you might suffer consequences at the next election. So they’ve delegated and allowed usurpations, retaining only enough power to assure that the flow of graft isn’t interrupted.

  11. I’ve said this in other forums, but I think the Supreme Court is popular and admired because it’s meritocratic, congenial, and principled.

    Say what you will about your least favorite justice, he or she had a respectable legal career before being appointed to the Court. There are no empty suits here. Which is a huge contrast to Congress and the presidency.

    The justices generally get along well. They don’t yell at each other, spit venom on the news, or denegrate their colleagues. Some ideological opponents even go hunting together (or so I’ve heard).

    Finally, there doesn’t tend to be much horse trading or log rolling in the writing of opinions. You may call your least favorites justice political hacks, but they generally believe the things they sign their names to.

  12. I would suggest that SCOTUS’s popularity is that it does its job. It makes decision and put reasoning behind those decisions. Congress prefers to sit on its hands and do nothing, because to take action also means to take responsibility. I think court packing is a useless exercise. If Democrats want to have a say in the court makeup they need to win the Presidency and the Senate.

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