The Volokh Conspiracy

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Volokh Conspiracy

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 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.