The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A recent Gallup poll finds that the Supreme Court's approval rating has fallen to 40% (with 53% disapproving). This is the lowest rating the Court has had in the twenty years Gallup has been asking the question. Last year, when the Court's approval rating reached a long-time high of 58%, I pointed out that its growing popularity makes it less vulnerable to political attacks intended to curb its influence, such as court-packing. Now that the Court has become much less popular, it's only reasonable to ask whether the reverse is now true: Could its newfound unpopularity might make it more vulnerable to court-packing and other similar measures?
I think the answer to this question is "yes." Other things equal, a relatively unpopular court has less political capital to call upon then one that a large majority of voters like. The more people dislike the Court, the less opposition there will be to measures intended to curb its authority, or even completely neuter it (the likely result of court-packing).
Certainly, the justices themselves seem to be concerned about the potential damage to their standing, which is why several of them have recently made public speeches and statements disputing the idea that their rulings are "political." Though they might not want to admit it, the justices recognize that the Court operates within political constraints. If they offend too many people too much, there could be a political backlash that the Court will be unable to weather.
That said, I think it is premature to conclude that the Court is in serious danger. While it may be more vulnerable now than it usually is, that vulnerability may not last long. As I noted in a 2018 post in this subject, there is a long history of the Court's reputation suffering because of controversial rulings and other events, only to bounce back quickly. and the Court's opponents will likely find it very difficult to take advantage of its window of vulnerability.
The previous record-low approval rating of 42% first occurred in 2005, in the aftermath of the Court's highly unpopular ruling in Kelo v. City of New London. But the Court's public standing quickly recovered after that. I literally wrote the book on why Kelo was a terrible decision. But even I can't seriously claim that the ruling did significant long-term damage to the Court's public legitimacy. There is a similar story about the public reaction to such controversial and widely disliked rulings as Roe v. Wade, Bush v. Gore, Citizens United, the school prayer cases, the flag burning cases, and others.
In each of these situations, partisan critics of the ruling predicted—or at least hoped—that it would do long-term damage to the Court's reputation. But, each time, public attention moved on to other issues, and the Court's approval rating soon recovered.
It is not entirely clear what has caused the recent slip in the Court's popularity. But it may be related to its unpopular recent decision in the Texas abortion case, and perhaps the ruling striking down the CDC eviction moratorium. SB 8—the Texas anti-abortion law the justices allowed to go into effect, is highly unpopular. And a majority of the public (53%) supported President Biden's revised eviction moratorium (though, interestingly, a plurality of 45% also believed the CDC lacked the authority to impose it).
My own view is that the eviction moratorium ruling was right. While I disagree with the SB 8 ruling and strongly oppose SB 8 itself, I also think it was in line with previous Supreme Court precedent, and thus not as egregious as many critics claim. But my views on both cases were likely at odds with majority public opinion.
If these and other recent rulings are the cause of the Court's declining popularity, it could easily bounce back once they recede from the headlines, and public attention moves on to other issues. Much the same thing has happened many times before.
It's possible that this time will be different, and the Court's approval rating will remain low, or even continue to slide. But, given the poor track record of similar predictions of the Court's political collapse, I will believe that it is happening only when the evidence for it becomes much stronger (e.g.—if the Court's approval rating remains low for many months or even years to come).
If the Court's public standing is likely to bounce back, Democratic advocates of court-packing and other similar measures may have only a narrow window of opportunity to push them through. If they want to neuter the Court, they will have to kick it while it's down!
Given the Democrats' own divisions on court-packing (with key moderate members of Congress opposing the idea) the odds are against them being able to muster enough votes to pass it right now, unless the Court becomes drastically more unpopular. In addition, picking a fight over court-packing might divert Democratic energy and political capital from what they consider to be more important objectives (such as passing a gigantic spending bill).
Finally, while the Court's popularity is low right now, much the same can be said for its potential Democratic opponents. President Biden's approval rating has fallen to about 45% with about 49% disapproving. That's better than the Court, but not by much. Congress' approval rating remains mired in the 20-30% range (with over 60% disapproving), where it has been for a long time. A bad approval rating by the Court's standards would actually be a great improvement for the legislative branch! In a clash between the admittedly weakened Court on one side and Biden and Democratic congressional leaders on the other, it's far from clear who would prevail.
My tentative prediction is that the Supreme Court's popularity will bounce back, and that—in the meantime—most Democrats will devote their time to more politically promising issue than court-packing. The Court is more vulnerable now than before; but not so much so that a relatively unpopular president and even more unpopular slim congressional majority can successfully attack it.
But I admit I could be wrong on one or both counts. If Court's approval rating declines further, and Biden's picks up, the political incentives might shift—especially if the Court makes additional highly unpopular decisions. I can certainly imagine situations where the Court suffers a genuine "crisis of legitimacy," and Biden (or a future president) might be emboldened to imitate FDR's 1937 attempt to neuter it. As I have emphasized before, there are great political obstacles to court-packing and other sweeping efforts to undermine the Supreme Court. But the prospect of such a showdown is unlikely to go away completely, for some time to come.
The threat of political retaliation might incentivize the Court to avoid highly unpopular rulings. But it's important to remember that that constraint still leaves the justices a great deal of discretion. The general public knows little or nothing about most Supreme Court rulings (including some very important ones). A controversial decision that splits the public along partisan ideological lines might anger one side of the political spectrum, but also increase the Court's popularity on the other. Only rulings that are both highly visible and alienate far more people than they attract, pose genuinely serious risks for the justices. And, as discussed earlier, even the effects of these might dissipate over time.
To avoid misunderstanding, I should emphasize that the popularity of the Court is a poor guide to whether it is actually doing a good job. What I wrote on that subject last year, still applies today:
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 ignorance.
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.
Just as high approval ratings don't necessarily prove the Court is doing a good job, low ones don't necessarily prove it's doing badly. My own view is that the Court's recent performance is "good enough for government work" and much better than what we would get if its power of judicial review was neutered by court-packing. But there is plenty of room for improvement!