Supreme Court

Does the Supreme Court's Declining Popularity Matter?

It could make the Court more vulnerable to political attack and to measures such as court-packing. But the vulnerability might not be great - or last long.

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The Supreme Court.

 

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!

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. The Supreme Court helped George W Bush steal the election in 2000!?! And 3 of the current Justices used their lawyerly talents to help Bush steal that election and then continued to support him as he lied America into a war to slaughter Iraqi babies while mismanaging the war against the terrorists that actually attacked us!?! And Kavanaugh and ACB, who had no problem helping Bush steal an election in 2000, then stabbed Trump in the back after he appointed them to the Supreme Court!?! How can anyone have any respect for the Supreme Court?!!

    1. Exactly. And “court packing” has already happened at the hands of Mitch McConnell. It’s not a hypothetical, we’re already living with it.

      1. I take a little different position on that because McConnell spanked Bush when he attempted to appoint Miers…so at that point the Senate took charge of the judicial appointments but unfortunately Obama and Schumer didn’t get the memo. Now Biden and Schumer finally got the memo and apparently they are appointing judges at record pace.

        So McConnell forced Trump to appoint whatever judges McConnell put before him…and Trump’s original sin was not using judicial appointments as leverage to get McConnell to pass his campaign promises.

      2. Court Packing meant putting enough additional members onto the court to ensure a majority of supporters for your positions. The term was first used in the FDR Presidency.
        The new meaning is very different. It now is used to mean that the number of justices is the same, but your side no longer has a majority. All those years as a humanities major in college is paying out – just change the meaning of the words to win the argument.

        1. They’re trying to change the definition of the term, so as to be able to claim it has already been done by Republicans, so why shouldn’t Democrats do it.

          I think the Democratic leadership have already decided they ARE sooner or later going to pack the Court, come hell or high water, and are currently trying to manipulate public opinion to reduced the political blowback from doing it.

          1. Barrett after Garland, you deserve it.

    2. The US Supreme Court got the right answer for the wrong reason. The florida district court in Bush v Gore was the only court that got the right answer for the right reason. Gore’s team failed to put into evidence, sufficient facts that would put the election in doubt and which could be reamided at the entire state level. The Gore team made good legal arguments, but the failed to actually put sufficient facts into evidence. See the district court holding.

      1. typo – remedied

        1. Bottom line—had Harris behaved like Rafensberger did in GA for the 2020 election then Gore would have won. The court stuff is irrelevant because a statewide recount was necessary and everyone supports statewide recounts except Republicans in November 2000. So literally at any point other that very small time period everyone supports recounts in a situation like Florida in 2000.

          1. eh – it was gore’s team that only wanted recounts in the Dem counties. revisionist history perhaps

            That is why the dems failed to put into evidence at the district court the would have put the election in doubt and which could be remedied at the entire state level. Go back and read the district court holding. Again, the district is the only court that got the correct answer for the correct reason.

            1. Nope, Harris refused to do her job which forced Gore to oversee the recounts by county. Harris could have started a statewide recount at any time but her strategy was to drag her feet in order to run out the clock so Bush would win.

              1. The court stuff is irrelevant because a statewide recount was necessary and everyone supports statewide recounts except Republicans in November 2000.
                The only requiest for a state wide recount came from the Supreme Court of Florida.
                The court had no jurisdiction to order the recount, but shutup, Judges, and reasons.
                The entire recount was under complete control of Democrats.

                1. Harris could have ordered a statewide recount but then Bush would have taken her to court…but she wanted Bush to win so her best course of action was to do nothing and let the clock run out.

                  But you got your wet dream president and his asinine wars and millions of manufacturing jobs shipped to China and a housing bubble and gays can’t get married…so it all worked out for you!! Totes worth it!!

                  1. Harris could have ordered a statewide recount but then Bush would have taken her to court…
                    If the candidates did not want a recount, why would Harris over rule the wishes of the the two with direct interest in the outcome of the election?

                  2. Gore attempted to get “recounts” (including by counting hanging chads and dimples) to inflate the vote count in (D) voting areas so as to get them overrepresentation in the final count. The (D)-dominated SCoFLaws acted as a co-conspirator. SCOTUS cut this off, finally.

                    Most of us here are old enough to remember this.

                    Your efforts to retcon us: FAIL.

                    1. The only reason there was a “dimpled chads” problem was because voting equipment in districts that tended to vote D was inferior adn poorly maintained.

                    2. James Pollock
                      October.2.2021 at 8:06 am
                      Flag Comment Mute User
                      “The only reason there was a “dimpled chads” problem was because voting equipment in districts that tended to vote D was inferior adn poorly maintained.”

                      Pollock – Why dont you explain how a stylis in a city precinct is going to be lower quality than a stylis is a suburban or a rural district.

                      FWIW – it difficult to get a dimpled chad when punching a single ballot at a time. Very easy to get dimpled chad when punching multiple ballots as a single time.

                    3. @JP: Gummint’ election equipment purchasing by (D) functionaries was even worse than gummint’ purchasing by (R)’s, so let’s entrust recounting to them only, right?

                      Makes sense in Pollockworld as much as it did to the (D) SCoFL. Must be some commonality there.

              2. Nope, Harris refused to do her job which forced Gore to oversee the recounts by county.
                Gore made an informed decision to recount counties he won by big margins. It’s a known technique to mine for more votes in those proven jurisdictions of advantage. There were countless discussions about what Gore wanted.
                Stop whining about Gore getting exactly what he wanted.

                1. Obviously the recount has to be completed by a certain date—Gore’s strategy was to get Harris to do her job…doing a statewide recount without Harris involved probably doesn’t get completed in time. Once again, Republicans support recounts except for a few months in 2000.

                  Btw, Trump is such a moron:

                  President Donald Trump on Saturday doubled down on his unsubstantiated claims that there was something nefarious going on in the Florida elections.

                  His assertion came in response to the news on Saturday that the Florida Secretary of State ordered a machine recount of votes in the U.S. Senate race, as well as the governor’s race. The results are due by 3 p.m. ET Thursday.

                  Trump tweeted, “Trying to STEAL two big elections. We are watching closely!”

                  Republican Gov. Rick Scott and Democrat Bill Nelson are locked in a tight battle for Florida’s Senate seat. Scott’s lead over Nelson narrowed to about 12,500 votes, or 0.15 percent, by Saturday afternoon.

              3. You keep saying she refused to do her job, but her job was to make the call, not to make the call Sebastian Cremmington would have made.

                1. Those crazy people, who keep insisting that a recount isn’t done until you actually count the votes.

                  1. During the period where Gore or Bush had the right to call for recounts, up to and including state-wide, Gore waited until the last minute, in order that Bush would not have time to respond in kind, and asked for recounts only in 4 counties. He could have asked for, and got, a state-wide recount, at any time during that challenge period.

                    He didn’t, because he didn’t think it would be advantageous. A selective recount would selectively boost his totals compared to Bush’s, a state-wide recount would in theory likely not shift the proportion of votes, he’d just lose again.

                    After the challenge period, Harris had the option of calling for a state-wide recount if she thought there was a reason to do so. She didn’t think there was a reason. That was, legally, her call.

                    The only reason Gore went to court to get more recounts was that his original strategy hadn’t worked. Having lost two rolls of the dice, he essentially asked the courts for more rolls, instead of accepting that he’d lost.

                2. Sebastan is forgetting what legal authority katherine harris had under applicable Florida election law. There are (were) two points in time that a canidate could contest/protest the election. (as I recall, the two terms are protest & contest). The first point in time is the after each precinct counts the votes, any canidate can request and obtain a recount in any or all counties as they wish. Gore’s team did this in the heavy dem counties and was perfectly legal under Florida state law. The second point in time is after each county turns in the votes to the secretary of state (katheline harris ) and the election is certified. At that point, the losing canidate can contest the election in state court. One of the requirements in the Florida election code (as it existed in 2000) is that the remedy has to applied at a statewide level.

                  Prior to the certification, the Florida Secretary of state did not have the statutory authority to order a statewide recount. As noted above, each canidate had the legal right to request recounts in any precinct they wanted which gore did. Obviously, once the suit to contest the election is filed, only the court has the authority to to order a state wide recount.

                  Sebastian is making the same making the same mistake the florida SC made – misintrepretating the applicable state law

                  1. “Obviously, once the suit to contest the election is filed, only the court has the authority to to order a state wide recount.”

                    As I recall, in fact, this was the Florida Secretary of State’s power, per the statutes in place at the time. You’d only get a recount on the authority of the courts if she had already exercised her discretion in the negative, and you went to court to over-rule the decision.

              4. Harris could have started a statewide recount

                Like everything else you write that in any way relates to Bush, this is untainted by anything resembling evidentiary support.

      2. Gore did indeed fail to present sufficient evidence, but the underlying problem is that the system as it is forces a result to be certified in too short a time for a thorough audit to be conducted. In my view the Court should have taken it on themselves to change that fact by changing deadlines, or at least urged Congress or the states to do it. Because they didn’t even try to address the problem, the Court’s ruling was a cop-out and they deserve the disrepute that flowed from it.

        All of the above equally describes the cases disputing the 2020 election, including the two major ones SCOTUS refused even to hear. But this time we have the additional issue of Chief Justice Roberts’ tirade, leaked by an anonymous staff member, to the effect that SCOTUS was darn well not even going to consider a case that might restore Trump to office at the price of provoking riots.

        That sort of cowardly conduct by any Justice is, in my view, grounds for impeachment.

        1. But this time we have the additional issue of Chief Justice Roberts’ tirade, leaked by an anonymous staff member,

          Look, Trumpkins are really stupid, gullible, and dishonest, data point #4,248,197.

          This. Didn’t. Happen.

          We know it didn’t happen because the justices weren’t holding meetings at the time this fake person pretended to hear this.

    3. No they didn’t. Gore and the Dems fought that battle with the wrong weapons and screwed themselves, and it doesn’t matter: the election was basically a tie, and may as well have been decided by a coin toss. No matter who won, half the country would have screamed foul.

      1. Bush stealing the election wouldn’t have been so bad had he not been the worst president in history reviled by all Americans.

        1. Gore stealing the election wouldn’t have been bad, since he was a Democrat.

          That’s what you think — just say it.

          1. Do you “steal” an election by having more voters pick you?

            1. No, you steal an election like the Detroit machine did, by waiting until you know how many votes you need to flip the state, telling the observers that the ballot counting is done, sending them home, “finding” a truckload or two of allegedly “validated” (in secret) “absentee ballots” at 3AM, and counting them as many times as necessary to get the desired result. Then you stonewall all attempts to examine what happened.

              Here’s a “fact check” saying it didn’t happen: https://www.freep.com/story/news/local/michigan/detroit/2021/02/05/gateway-pundit-video-doesnt-show-election-fraud-detroit/4411975001/ The proof: The person in charge said it was all above board!

              1. Also proof: the judge hearing the allegations laughed them out of court.

      2. “No matter who won, half the country would have screamed foul.”

        Maybe it’s NOT a good idea to have a partisan person in charge of counting votes…

        1. Everyone is partisan on at least one point. For example, I really don’t like cream of asparagus soup.

        2. Who ARE these non-partisan people with no interest in who wins?
          Do they have three eyes and antennae?
          Oh, wait, you mean SCOTUS should pick who wins, right?
          AFTER the (D)s pack the Court.
          Got it.

        3. We can agree on that. My proposal is to create a national “Election Corps”, similar to the Peace Corps, where people could volunteer to participate, be thoroughly trained, and then assigned to do the work at random precincts far from home, rendering them somewhat more objective, and making it much harder to get areas dominated by partisan groups where abuses would be excused.

          It’s bad enough that we have election administration by partisans; We have election administration by local partisans, who tend to be all of the same party.

    4. SC,
      I have answered this bogus claim several times. If Mr Gore had been honest and asked for a hand recount of the entire state, the result might have been different. But as one slate of electors was already certified, the election would have come down to the decision of Jeb Bush even if SCOTUS had not intervened.
      Stop living in ancient history

      1. That’s because Harris refused to do her job…but obviously Jeb was going to continue to attempt to steal the election by any means necessary. You got your wet dream president and in America two gay men still can’t get married thanks to George Xi Bush!

          1. I almost invariably only mute spam, but he IS tiresome.
            Does he ever get off this subject for his lying and whining?

  2. the eviction mortatorium should have been a no brainer. A) The CDC lacked the statutory authority to issue the mortatorium, B) it was a clear taking, and C) the mortatorium had close to zero impact on reducing the spread of Covid. Covid was only an excuse for the socialists/progressives to take money.

    It is understandable that the court lost some popularity with the “failure” to fully support Casey.

    Yet it is understandable that the court is losing popularity when groups such as the People for the American Way repeatedly lie and misrepresent every holding/ruling about any justice appointed by a republican president and then which get repeated by the media, etc as if it was true.

    1. “A) The CDC lacked the statutory authority to issue the mortatorium, B) it was a clear taking, and C) the mortatorium had close to zero impact on reducing the spread of Covid.”

      Lots of things get clear when you just make up your own facts to support them.

      1. A and B are certainly true. The rest is political opinion.

        But the things that count, and make the decision correct – are A and B.

        1. Guys like James Pollock have serious detachment from reality.

          1. That’s your claim? Being stuck with objective reality instead of partisan fantasy makes me “deteched from reality”?

            1. Pollard – Objective reality

              A) Care to explain what statutory authority the CDC had for the eviction mortatorium (other than the short 2 month period Dec 2020 – Jan 2021)
              B) care to explain why the government ordering private parties to provide private property to others without compensation is not a taking under 5A
              C) care to explain how the eviction mortatorium had any impact on the transmission of covid (other than a trivial impact)

              Care to explain how following the constitution is “partisan”

              Partisan would be arguing for something the constitution does not allow.

      2. Lots of comments are perfectly clear when you just say no.

        1. This a reference to Nancy Reagan?

  3. The left sees it has lost the court for at least another generation but probably longer. They barely control Congress and their president is feeble minded. They are at each others throats and can barely pass legislation. I see the dissolution of the left as real now as they let the perfect become the enemy of the good.

    Artie the bigot is going to have a tough time after all this – his cognitive dissonance is quite bad.

    1. ” their president is feeble minded”

      This didn’t bother you last year, when you guys supplied the feeble-minded President.

      Man, woman camera….

    2. America becomes less rural, less religious, less White, less bigoted, and less backward every day, buckleup. The mainstream victory over conservatives will continue.

      Republicans will continue to lord over hayseed towns and can’t-keep-up states for a while, but modern America — the strong teaching and research institutions, the legitimate media, the entertainment, the successful communities — is a liberal-libertarian world that advances against the preferences of conservatives.

      Until they shed the bigotry-superstition weight, conservatives will continue to be painted into increasingly small, desolate corners of America. At some point, they will essentially vanish.

      (The guy who wrote that one also wrote the Pina Colada song, believe it or not.)

      1. Korumbo. Ofay. Maricon.
        You don’t have to look to whites if bigotry is what you want; it is everywhere, among all groups. Probably part of the human condition.

        1. Don’t you agree, diversity is the strength of our country? Isn’t it high time, Artie were replaced by a diverse?

          1. Grammar not your thing? Pronouns can take the place of a noun, but adjectives can’t.

            1. They can when some words are prohibited.

              How about, the rich, the unemployed, our elders, juniors, inferiors, minors?

              Isn’t typo and grammatical nitpicking bad manners on the internet? It commits the Fallacy of Irrelevance. Studies have shown such bellyachers have a 90% chance of being jerks.

              1. The Supreme Court is composed of arrogant, supercilious, elitist, Ivy indoctrinated lawyers. They do not care what people think, because they know they are right. What they are is a bunch of dumbass lawyers making national policy on complicated technical subjects, about which they know nothing. So people hate them intensely. They are out of control in their petty tyranny, and must be reined in by a new Judiciary Act.

      2. For any one reading the above, Kookland is performing his weird trick of “footnoting” his assertions with a music video. I didn’t follow it, but hovering over it shows “youtube”. So there’s no need to click on it.

        And then there’s his tiresomely triumphal crystal ball.

        That exhausts his bag of tricks. No use in saying “Roll over, boy!” That’s beyond his abilities.

        1. Most of us probably have him muted. I think he was the inspiration for that feature being added.

        2. Artie’s replacement fantasies and predictions are based on a math error by the Democrat attack dogs, who are in the majority at the Census Bureau. Hispanics of all kinds, not just Cubans, are all white supremacists and racist. They are all patriots grateful for their rescue from the Socialst shitholes they escaped. They turn Republican as soon as they get a job and buy a share.

        3. One need not possess a crystal ball to assess a half-century of glorious American progress that has been shaped by the liberal-libertarian mainstream against the wishes and works of bigoted, half-educated conservatives and disaffected Republican clingers.

          We’ve been stomping clingers in the culture war a casualty like gandydancer doesn’t know whether to cry, buy a lollipop. or wind his watch.

          You can do as you wish, gandydancer . . . but you will continue to comply with the preferences of better Americans. Thanks for your obedience, bell boy.

          1. For any one reading the above, Kookland is performing his weird trick, TWICE, of “footnoting” his assertions with a music video. I didn’t follow it, but hovering over it shows “youtube”. So there’s no need to click on it.

            And then there’s his tiresomely triumphal crystal ball, which can’t even get the past right. History bends towards Progress, right? Look around you: Progress! And Dementia Joe will lead us onward and upward! Progress!

            That exhausts his bag of tricks. No use in saying “Roll over, boy!” That’s beyond his abilities.

  4. Is it a coincidence that Supreme Court popularity has declined as appointments to it became increasingly partisan?

    1. You have a graph of that going back to when?

        1. This is the lowest rating the Court has had in the twenty years Gallup has been asking the question.

          What else do you have?

  5. When I was litigating, I scrupulously avoided attacking the judge hearing my client’s case. But that’s just me

    1. As opposed to who, and who is his client?

    2. Always artack the vile judge, the mortal enemy of the client. It is a standard of due care to induce a reversible error. I want to due discovery on the scumbag’s devices and report all embedded child porn to yhe FBI.

      1. I suppose that very, very occasionally you might start out with a hostile judge and there’s no point in sucking up to him, so inducing reversible error or recusal might work as a Hail Mary. But, really, I couldn’t figure out what JH was talking about. It should be a race among commentators (incl. Somin) to maximize their obsequiousness because THAT will move the Court in their direction? Meanwhile, treat all of us like mushrooms so that no one gets any suggestion as to what that right direction might be?

  6. 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.

    Lots of ways to “neuter” the court, though I’m not sure that’s the right word. The GOP is working hard at it.

    1. The GOP is working hard at it.

      Yeah, that GOP plan to pack the court is quite the outlier.

      And it was McConnel who declared that some justices would “Reap the whirlwind!” if they voted wrong, right?

      Btw, what’s the color of the sky on YOUR world?

      1. “what’s the color of the sky on YOUR world?”

        It’s black on all the worlds.

        ” it was McConnel who declared that some justices would “Reap the whirlwind!” if they voted wrong”

        no, it’s McConnell who invented the McConnell rule, that Presidents can’t nominate justices in the last six months of their terms of office, then promptly forget that he’d ever made such a rule as soon as he could gain an advantage by doing so. That’s the sort of thing that reduces confidence in the judiciary.

        1. “the McConnell rule, that Presidents can’t nominate justices in the last six months of their terms of office,”

          Is it even worth pointing out once again that this is the Democratic/leftist/media version of the so called “McConnell rule”, not the actual thing? One reason it is so hard to have a rational discussion with leftists. You always leave out the part about “Senate/President different parties” which is sort of important.

          1. More important is the relative ease with which a majority party could change the number of justices at the Supreme Court.

            Did clingers really expect most of America to appease a Supreme Court fashioned by the backward, intolerant relics of the Federalist Society?

        2. The President can nominate whoever he wants whenever there’s a vacancy. The actual “McConnell Rule” is that the Senate is under no obligation to hold hearings on nominations it has no intention of approving, and that has been common practice for nominations as long as I can remember. Continuing to pretend that that SCOTUS Justices are a special case was a mug’s game, and good riddance to that.

          1. It would be common practice as long as you could remember if you were 230 years old. It’s been common practice right from the start.

  7. Yet another reason that the U.S. is a representative democracy as opposed to a pure one…thank dog.

    1. The main reason for that is poor communication and transportation networks when it was founded.

      1. I don’t think you’re remembering the reasoning correctly: Small States vs. Large States, Federalism, etc.

        Please do better research.

  8. The risk the Court runs in not caring about its popularity isn’t FDR trying to add justices. It’s Andrew Jackson deciding that he doesn’t need to pay attention to their rulings.

    1. Did Jackson extend an eviction moratorium after admitting he didn’t have the authority?

      I think what you’re describing recently happened, at least temporarily.

      1. Is Obama declaring he couldn’t do a DACA b/c he wasn’t a king all that recent?

      2. “Did Jackson extend an eviction moratorium after admitting he didn’t have the authority?

        Besides the Trail of Tears?

        1. The Cherokee expulsion was an eviction moratorium?

          Not making sense is insufficient for the result to count as snark.

    2. DACinIN, that is a pretty good comment.

    3. Either way, the risk is that a left-wing president tries to dynamite the checks and balances set up by the Constitution. Will the people in Congress who impeached a President over a phone call impeach a President over that kind of attack on the country’s order?

  9. It would seem obvious that the cause of the decline in the Court’s popularity – its approval rating – is easily traceable to one thing: the Left and the Democratic party have been throwing one long, purple-adjective tantrum of half-truths and untruths since it became clear they’d lost control of their favorite anti-democratic plaything, the magical box that spat out policy results they never could get through legislation, presentment and signing.
    Propaganda works. That’s why we have advertising.
    When Obama spent the spring of 2012 beating up on the Court in the run-up to the first Obamacare decision, the approval rating of the Court went down. He was aiming at the spineless Roberts. It worked.
    And now you’re seeing his model repeated.

    1. You do realize the individual mandate has been repealed?? Did that improve your life?

      1. It’s been reduced to zero, but Roberts still thinks its a tax.

    2. Right. The causal relation here isn’t “unpopularity may enable packing”. It’s “unpopularity is being encouraged in order to enable packing”; The Democrats have been running an anti-Court PR campaign.

      1. How dare they criticize decisions with which they disagree!

    3. The current Court resembles the Federalist Society more than it does modern America. It is behind the times, on the wrong side of history. Its current roster indicates it will be heading backward while the electorate is headed forward. That is an unsustainable trajectory.

      I expect the Court to change.

      1. Kokklands broken crystal ball never changes its message and, unlike a broken clock, isn’t right even once a day, Or year, Or decade.

        If only he would stop giving readings. It’s so tiresome.

        1. Better Americans have been smacking the clingers around for so long a guy like Gandydancer can’t even tell the direction in which America has been headed throughout his life.

          I’d feel sorry for these disaffected losers if it weren’t for their bigotry.

          1. For any one reading the above, Kookland is performing his weird trick of “footnoting” his assertions with a music video. I didn’t follow it, but hovering over it shows “youtube”. So there’s no need to click on it.

            And then there’s his tiresomely triumphal crystal ball, which can’t even get the past right. History bends towards Progress, right? Look around you: Progress! And Dementia Joe will lead us onward and upward! Progress!

            That exhausts his bag of tricks. No use in saying “Roll over, boy!” That’s beyond his abilities.

    4. “It would seem obvious that the cause of the decline in the Court’s popularity – its approval rating – is easily traceable to one thing: the Left and the Democratic party have been throwing one long, purple-adjective tantrum of half-truths and untruths since it became clear they’d lost control of their favorite anti-democratic plaything,”

      Unless one had been paying attention, and remembered the decades-long attack on the Court led by Conservatives who found they didn’t have the support to pass a Constitutional Amendment to overturn any of several cases that didn’t go their way, so the only way to get that was to put partisans in judicial seats.

  10. The Supreme Court is awful. It is always lawless and wrong. If the lawyer is the stupidest person in our country, less intelligent than a student in Life Skills class learning to eat with a spoon. Among the lawyers, the dumbest get to sit on the Supreme Court.

    It should be moved to the geographic center of the nation out of degenerate, rent seeking Washington DC. It should be expanded to 500 Justices if it going to legislate from the bench. No lawyer should be allowed to be a Justice. These remedies can be achieved with a Judiciary Act.

    1. Does it matter, as Ilya asks? No. The lawyer profession is stuck on stupid and on denial of its failure. It is arrogant and does not care about the country. It only cares about one thing, the rent.

    2. The Supreme Court is awful. It is always lawless and wrong. If the lawyer is the stupidest person in our country, less intelligent than a student in Life Skills class learning to eat with a spoon.”

      Look who’s proud that he eats with his hands and doesn’t bother trying to use a spoon.

      1. I’m only trying to help. You can mock, but you are in denial, James. No one cares about you more than me.

  11. The Court, more than at any time since 1937, is far to the right of not only the views of the majority of Americans but with the majority of politicians, lawyers and legal scholars. Only in unrepresentative, minority-view places like the Federalist Society and the Republican Party is it supported.

    1. Your opinion comes from fake polls. No poll is valid since the predominance of cell phones.

    2. Your comment seems to imply that “lawyers and legal scholars” are to the right of the majority of Americans. Was that your intention?

      1. No I phrased it badly. The Court is well to the right of most lawyers and legal scholars too.

      2. “Your comment seems to imply that “lawyers and legal scholars” are to the right of the majority of Americans. Was that your intention?”

        There’s lower-case “c” conservatives, and there’s upper-case “C” Conservatives. Lawyers are definitely lower-case “c” conservative, as shown by their reverence for precedent. But the judiciary have been stacked Conservative because the Cons have been unable or unwilling to even try to pass a Constitutional amendment to overturn the court rulings that haven’t gone their way. Brown v Board of Education, Roe v Wade, Lawrence v Texas, Obergefell,

      1. He said 1937, but 1973 is more accurate. That’s when Roe v Wade convinced Conservatives that they had to have control of the Court to make sure rulings they didn’t like didn’t become law of the land.

        1. The (D)’s were already convinced of that by 1937, so if it took the (R)’s until 1973 to wake up to that then they’ve fully earned their reputation as the Stupid Party.

        2. “Impeach Earl Warren.”

    3. You realize there is a reason that Supreme Court justices are not elected and have life terms, right? They are not supposed to bend their knees to popular whim or the mob’s excesses.

      1. They’re not supposed to be picked because they’re reliable partisans, either.

  12. Right. The causal relation here isn’t “unpopularity may enable packing”. It’s “unpopularity is being encouraged in order to enable packing”; The Democrats have been running an anti-Court PR campaign.

    1. Note:

      When Democrats criticize the court they are “running an anti-Court PR campaign.”

      When Republicans do so they are standing up for an honest interpretation of the Constitution.

      1. No, rationally criticizing rulings is not an anti-Court PR campaign.

        Claiming that the Court is illegitimate or corrupt – that is most certainly part of an anti-Court PR campaign.

        1. The court IS illegitimate and corrupt and packed with hacks.

          Just b/c the (D) are lying about why one should know this doesn’t mean it isn’t true.

          1. I’d say it’s legally legitimate, in as much as all the formalities have been followed, but it IS packed with hacks. How could it be otherwise, when the staffing decisions are made by politicians? And you are informally limited to picking lower court judges who were willing to stomach enforcing the higher courts’ accumulated rulings?

            If the left doesn’t like this Court, I assure you that they’d go totally bonkers if they had to deal with one that wasn’t full of hacks willing to tolerate generations of unconstitutional power grabs by the federal government.

            1. The modern Court – left and right – is probably less ‘hack’-y than most of the Court through US history.
              At least none of this crowd were elected politicians before they became “impartial” Justices.

              1. Just b/c they haven’t run for election by the general public doesn’t mean they aren’t politicians.

          2. Please describe how it’s illegitimate. And please describe how it’s corrupt.

            Every justice was appointed by a duly elected president and confirmed by the senate.

            And I’ve never seen any allegation of corruption involving these justices.

            So, yeah, you’re pretty much full of shit.

            1. YOU are ABSOLUTELY full of shit, as your attempted restriction of the word “corruption” to packets of money clearly shows.

              Merriam-Webster:

              Definition of corruption
              1a: dishonest or illegal behavior especially by powerful people (such as government officials or police officers) : DEPRAVITY

              Dishonest is a given (watch any confirmation hearing), and the kritarchs exercise of power not granted to them is illegal no matter that they say otherwise in corrupt chorus.

    2. “The Democrats have been running an anti-Court PR campaign.”

      And that’s been Republican turf since 1973. Remember when Republicans didn’t like judicial activists? Turns out they’re fine with judicial activism, so long as it goes their direction.

      1. And, hey, the Democrats loved activism when it favored them and hate it when it doesn’t.

        It’s almost as if the partisan zealots are all a bunch of fucking hypocrites who display no logical consistency. But not Your Team, right? LOL.

        1. “not Your Team, right?”

          You’re criticizing a non-partisan for being too partisan, idiot. LOL.

  13. Their problem is that every one is aware that if the supremes are basing their decisions on “the law”, there should be very, very, few 5-4 decisions. Occasionally, one or two justices may see the facts from a different view, but where the law is clear, there should be larger majorities. And where the law is silent, there should not be any creative readings to create rulings out of thin air.
    I’m looking at you, QI.

    1. But this ignores the fact that clearcut cases are much less likely to get to the Supreme Court.

      For example, one way they may get there is if there is a circuit split. That sort of implies that the law is at least somewhat ambiguous to begin with.

    2. “should be very, very, few 5-4 decisions. ”
      That is not at all clear and in fact the proportion of 5-4 decisions is not large

    3. If the court at all levels were working as intended then there would be mostly 5-4 or 6-3 with virtually no 8-1 or 9-0 decisions because things that clear cut shouldn’t create the circuit splits to get to SC rulings.

      Mind. That requires congress to respect the Constitution, or perhaps exempts those new legislation rulings from the above split.

    4. “I’m looking at you, QI.”

      Are you aware of who’s blocking legislation to rein in QI?

      1. The progressives who insist that police reform include a “defund” provision?

        1. Nope. Didn’t happen.

          1. Details like that are not important to the partisan True Believers.

  14. 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.

    This is a strange list. That there is prominent mention of Kelo but not the Obamacare rescue or Obergefell says something about Somin. Also, the idea that the impact of Roe has disappeared is ridiculous. That the Gallup question only goes back 20 years means that that impact, which is huge, is baked into the current range.

    1. There’s public outrage that comes from the Court’s action, and there’s public outrage that comes from complaints about the Court’s action. In the first case, there’s fallout from overturning Plessy, and in the second there’s just about everything else you mentioned, plus Citizens United (which your forgot, apparently).

      1. I forgot nothing. I didn’t mention Bush v. Gore or the school prayer and flag burning cases, either, since doing so was unnecessary to my point, which went whooshing over your head, apparently.

        Hint: It was about Somin’s inability to distinguish between the area subjects occupy in his brain and their importance in the real world, and the resultant howlers. You are displaying the same trait.

        1. You’re arguing 1) that real events aren’t relevant to your point, because 2) you’re criticizing someone for not mentioning events that you find important.
          And you’re claiming your point went wooshing over MY head. It went by so far overhead, it’s buried six feet underground.

  15. How popular is Congress? I wonder what would happen if they got up to 40%? They would probably have a celebratory orgy.

    1. (Sorry for the mental picture)

      1. Not so easily forgiven.

        More penance needed.

        1. Whatever you do, don’t look up “orgy” on Wikipedia, and if you do, don’t think of Congress.

          1. Cal…if you toss in a few repetitions of Al Chayt in addition to bernard11’s penance, all will be forgiven. 🙂

  16. A record in the public mind of predictable politically-associated bias is a problem for the Court. But maybe not that big a problem, if the cases in question have limited scope.

    What creates a problem too big to manage is a record of a more than one or two horrifically partisan decisions with landmark status and far-reaching implications. At a minimum, this Court already has 3 such decisions on its record, Bush v. Gore, Citizens United, and Shelby County. Some would say Heller is another. Already mixed up in that reckoning is the further delegitimizing influence of the Garland – Barrett – McConnell about-face on appointments, and Kavanaugh’s conduct during his appointment fiasco. Add an overturn of Roe v. Wade, and this Court would be irremediably upside down not only in public esteem, but also in the view of history.

    1. Do you mean the view of historians?

      Or will the actual Muse of History roll her eyes, like in this Pierre Mignard painting?

      https://en.wikipedia.org/wiki/Clio#/media/File:Pierre_Mignard_-_Clio_-_WGA15654.jpg

      1. By the way, those are some plump arms she has. Maybe she got fat by feasting on discredited prophecies.

        1. If you don’t like the way the artist drew her (in the picture you chose to refer to), draw her yourself and do a better job.

    2. You really need to stop inhaling Kookland’s stash.

    1. Here’s the specific image I was going for.

      https://bit.ly/39YE2YA

  17. When you have the MSM telling you that SCOTUS is a bunch of GQP/MAGA/Catholics, what do you expect?

    When they declare S.B. 8 unconstitutional, Democrats are going to be really disappointed.

    1. Democrats are in a race against time. They are hoping to pack the Court before they lose their majorities in January 2023.

      But if they are really ham-handed, Manchin switches parties and Dems lose the more important majority even earlier than that.

    2. When you have the MSM telling you that SCOTUS is a bunch of GQP/MAGA/Catholics, what do you expect?”

      Darn those MSM, pointing out things that are true when we’re trying to sell delusion! Why, there’s not a single partisan on the Court, now that Ginsberg has been replaced by a good Catholic!

  18. I’m strongly pro-choice but I think the problem with the SB 8 decision is that it’s implicitly premised on the justices skepticism about Roe.

    As much as I wish otherwise Roe is just bad law and we need Congress to step in. Ok, sure I think one could have defended Roe if the justices had been willing to interpret the right to autonomy (aka privacy) in a broad way that feels like cherry picking.

    Sure, maybe the Constitution reserves a certain sphere of choices to the individual to make w/o government interference but if you took that seriously you would have to uphold a general right to take unapproved medicines or even narcotics.

    I mean in both cases one is taking (usually in abortions) a chemical to alter the normal function of the human body. Sure, drugs affect how you behave and have downstream effects on society but the idea that there aren’t huge effects on society because people either do it don’t have abortions is absurd. I don’t believe those effects are negative (quite positive) but that’s surely not the justices role to evaluate and it certainly doesn’t make sense insofar as we are talking about a right to something like autonomy. The whole concept of a right is that it’s not something the gov can abridge bc they think it’s a bad choice.

    In the long run I think a court that just slammed the Roe decision and repealed it first rather than kinda leaking changes out would…or at least should…be treated better.

    1. I’m strongly pro-choice but I think the problem with the SB 8 decision is that it’s implicitly premised on the justices skepticism about Roe.

      Why say “but” when “and therefor” is what appears to be accurate?

      The SB8 “decision” is the correct one, irrespective of Roe. The case isn’t ripe for any decision.

      Btw, the second sentence in your first paragraph also doesn’t, I think, say what you intended it to say. Reason’s crappy comment software won’t let you fix it, but you can append a correction.

    2. I’m sure a majority of the Court ARE skeptical about Roe. Even a fair number of pro-choice legal scholars will agree that decision was poorly reasoned.

      The problem is that they’re also skeptical about having their homes firebombed.

      “Sure, maybe the Constitution reserves a certain sphere of choices to the individual to make w/o government interference but if you took that seriously you would have to uphold a general right to take unapproved medicines or even narcotics.”

      I’ve said that myself: If the ‘bodily autonomy’ reasoning used in abortion cases were being taken seriously by the judiciary, rather than just being an excuse to reach abortion rights, the impact would be very wide-ranging. But instead this doctrine is basically never applied outside of abortion, or to some extent, other sex related stuff.

      You want anabolic steroids? Modafinil so that you can study straight through the weekend before a critical final? An experimental treatment because you’re terminal anyway, and it might work?

      Forget about ‘bodily autonomy’, they’ll laugh at you.

      1. “If the ‘bodily autonomy’ reasoning used in abortion cases”

        You mean the body of the 4th amendment needs to remain intact? That’s the reasoning in determining that abortion previability is none of the government’s business.

    3. “As much as I wish otherwise Roe is just bad law and we need Congress to step in.”

      There’s nothing wrong with Roe. What needs fixing is your understanding of what things Congress can step into. Note that “Reproduction Rights” isn’t listed in Article I, Section 8.

      1. I’ll agree with this much: The idea that Congress should ‘step into” abortion policy is madness. It’s as purely a state issue as it gets.

        1. It’s Congress’ job to tell SCOTUS that.

          1. It certainly is not.

        2. “I’ll agree with this much: The idea that Congress should ‘step into” abortion policy is madness. It’s as purely a state issue as it gets.”

          You wouldn’t say this if none of the states took your position.

  19. Wow…So much SCoTUS negativity. VC conspirators, maybe it is time to say something positive here about our SCoTUS.

    I have a profound respect for SCoTUS as an institution, and for all of the justices themselves. It has been that way since I was a child. One of the highlights of my life was getting a ‘behind the scenes tour’ of SCoTUS, and talking to some of the clerks. What we have with SCoTUS is nothing less than miraculous. For 240+ years, out SCoTUS has faithfully guided our understanding of the Constitution, and its application to our daily lives. They have not always gotten it right, but I have never once doubted that the justices, all of them, remain true to their oath to impartially dispense justice. I am glad we have ideological diversity on SCoTUS. Because of VC, I have a newfound respect for Justice Breyer (who I rarely agree with), and am even more emphatic in saying and believing that we have the right Chief Justice at the right time: John Roberts. The historians will write about his consequential tenure for a long, long time.

    My take is that we (through inaction of our elected representatives), have ‘forced’ SCoTUS to deal with social and political questions that the legislative and executive branches should address….but deliberately choose not to, and punt to SCoTUS. That is wrong. And that is why we are here in this difficult place, where the essential legitimacy of SCoTUS is under attack.

    We do a disservice to ourselves, and our country, when we slam SCoTUS for decisions they make….and especially come about because the legislative and executive branches fail to do their jobs.

    1. If you are so enamored of Supreme Court justices, you should welcome installation of a few more.

      1. Arthur, they’re doing fine in the circuit courts, for the time being. No current openings at SCoTUS. Great that we have a really good federal judiciary.

      2. For any one reading the above, Kookland is performing his weird trick of “footnoting” his assertions with a music video. I didn’t follow it, but hovering over it shows “youtube”. So there’s no need to click on it.

    2. *baa* *baa* *baa*

      It is not the job of SCOTUS to do things that you imagine are necessary for the Congressvermin to do, any more than it was the job of Obama to start DACA by diktat because Congress wouldn’t.

      1. You just don’t like it when anyone uses the authority they have in a way you don’t like, and wish they didn’t.

    3. XY, I agree with you for the most part. My biggest criticism is that they don’t accept and decide enough cases. They have allowed their docket to shrink to the point of ridiculousness.

  20. What’s more concerning is the public’s absolute ignorance on the constitution and how the court operates.

    See the reaction to the recent WWH opinion for plentiful examples.

    1. By “ignorance”, you mean that other people don’t share your preconceptions.

        1. “Not all opinions are equal.”

          Yours are equally stupid.

  21. They clearly took Dobbs to overturn Roe… the question is if the backlash to the SB8 ruling scared enough justices off of it.

    If they follow through with a full overturn when that decision comes presumably in June, that’s going to make the SB8 order look popular. Might be the only thing that saves Democrats from a midterm loss of both houses too.

    1. Not following you. If SCOTUS uses Dobbs to overturn Roe (actually Casey) how will that “make the SB8 order look popular”?

      1. Under current law, Texas SB 8 is obviously not a lawful exercise of state power. If, as posited, current law is going to change, then applying a stay to SB8 would be bad, and thus choosing not to apply a stay would be good.
        Of course, at present the law has not been changed. So some chicken-counting has occurred prior to hatching. If that sort of thing bothers you…

  22. It’s quite possible the CJ Roberts has done more to harm the reputation of the Court than he has done to preserve it. His mealy defense of Obamacare really ended all my respect for him.

    1. Oh noes. The Chief Justice was insufficiently partisan for you? He insisted on seeing that Congress is actually authorized to lay and collect taxes by the Constitution, and you were hoping for a different ruling?

  23. The narrative that SCOTUS helped GWB steal the 2000 election is fake news. A post-election, state-wide, county-by-county, precinct-by-precinct, ballot-by-ballot recount, sponsored by mainstream news organizations, showed that Bush did indeed win the popular vote in FL. Amazing how such myths continue to be believed by the gullible.

    NY Times source (“EXAMINING THE VOTE: THE OVERVIEW; Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote”): https://www.nytimes.com/2001/11/12/us/examining-vote-overview-study-disputed-florida-ballots-finds-justices-did-not.html

    1. Willie, you are a victim of bad headline writing and your own careless reading habits. Among other things, your linked article says this:

      But the consortium, looking at a broader group of rejected ballots than those covered in the court decisions, 175,010 in all, found that Mr. Gore might have won if the courts had ordered a full statewide recount of all the rejected ballots. This also assumes that county canvassing boards would have reached the same conclusions about the disputed ballots that the consortium’s independent observers did. The findings indicate that Mr. Gore might have eked out a victory if he had pursued in court a course like the one he publicly advocated when he called on the state to ”count all the votes.”

      The NYT report then goes on to say the analysis did not make any attempt to dis-entangle the over-votes problem—ballots where a voter both checked a box for a candidate, and then wrote in the same candidate’s name. Although the voters’ intentions in such cases were unequivocally clear, rules had been interpreted to require those ballots to be thrown out, and the consortium’s analysts abided by that interpretation during their review. However, post-election analysis showed that had unambiguous overvotes been included, Gore would have been a clear winner.

      During the vote counting, it was after the overvote problem came to the notice of Republican election observers that SCOTUS stepped in—with the effect of blocking any Florida judicial reconsideration of the overvote rule and its interpretation. It makes sense to suppose that is why the Supreme Court decision took the curious form that it did—ordering an end to ballot counting, and precluding use of the case as a precedent, while mumbling without explanation about uniform standards, instead of intervening with more forthright reasoning.

      All that is before any consideration of the absurd snafu delivered by the “Butterfly Ballot.” Maybe no one would argue that a court could order changed any votes miscast because of that. Nevertheless, common sense joins self-reports from misled voters to tell us that was another large pile of votes for Gore that happenstance denied him.

      Taken as a whole, post-election analysis unambiguously shows the opposite of what you claim. The people of Florida intended to elect Gore president, did its level best to cast more votes for Gore than for Bush, and SCOTUS denied Gore the presidency by stopping the vote count before it was completed.

      SCOTUS did that in disregard of its own judicial norms then in effect regarding election jurisprudence. The Court took a long-lasting hit to its legitimacy when it did that. The result quite clearly deflected the course of American jurisprudence down to the present, an enormously consequential outcome. As long as those consequences continue, so will the damage to the Court’s legitimacy.

      1. Not going behind the paywall, but that’s not what “overvote” means.
        https://en.wikipedia.org/wiki/Overvote

      2. All that is before any consideration of the absurd snafu delivered by the “Butterfly Ballot.” Maybe no one would argue that a court could order changed any votes miscast because of that.

        Or maybe the SCoFL would indeed have ordered votes cast for other candidates on the Democrat-created “Butterfly Ballot” counted as votes for Gore. It WAS that corrupt.

        1. The voting methods used in that election were not standardized across the entire state. Were different methods used in different precincts to intentionally alter the outcome of the election? Hard to avoid this conclusion with the statewide coordinator for one of the candidates also coincidentally being the state officer tasked with running the election.

          “Or maybe the SCoFL would indeed have ordered votes cast for other candidates on the Democrat-created “Butterfly Ballot” counted as votes for Gore.”

          They had testimony from actual voters that they intended to vote for Gore when they mis-marked ballots.

      3. and precluding use of the case as a precedent,

        You’ve been lied to; this never happened.

    2. “The narrative that SCOTUS helped GWB steal the 2000 election is fake news. A post-election, state-wide, county-by-county, precinct-by-precinct, ballot-by-ballot recount, sponsored by mainstream news organizations, showed that Bush did indeed win the popular vote in FL. Amazing how such myths continue to be believed by the gullible.”

      The gullible are easily fooled into believing that several steps were taken to disenfranchise non-W voters, which Gore was almost able to overcome anyway. The Supreme Court definitely endorsed the principle that you can decide who won an election without counting all the votes.

      1. It’s almost like allowing the person in charge of running the election to also be the statewide coordinator for a Presidential candidate could lead to some perception that the election results might be unreliable.

    3. “The narrative that SCOTUS helped GWB steal the 2000 election is fake news.”

      What they actually allowed was for the partisan election officer to stop counting votes AND CERTIFY THE ELECTION at an arbitrary point, coincidentally when their preferred candidate was ahead in the count.
      Using logic like this, the Falcons defeated the Patriots in the Super Bowl, because they were ahead after 3 quarters. They also won last weekend, beating the Washington Nameless 30-28 in a 58 minute game.

  24. It is not entirely clear what has caused the recent slip in the Court’s popularity.

    Start with the GOP’s transparently political refusal to give Merrick Garland so much as a hearing, much less a vote.

    1. You mean, like the majority of other nominations that were not approved?

      1. No, Toranth, not like those at all. Others did not get votes because they could not have been approved. Garland did not get a vote because Mitch McConnell feared he would be approved.

        If you want to dispute that, explain why McConnell gave his absurd explanation about denying the vote to Garland, and then reversed himself in the case of Barrett. Or, on second thought, don’t explain that. I have seen those explanations, and they invariably insult the intelligence of anyone who reads them.

        1. Oh? You’ve reviewed all of the dozens of nominations that never got a vote, compiled a chart of all the sitting Senators of the time, and cross-referenced their political views with the views of the candidates and trending social approval in their states – and combined it with your mind-reading of the modern Republican Senators – to determine that only this once would a proposed nominee have passed the vote if it had passed committee? Even during those years when there was no committee controlling the vote?

          Somehow, I doubt that.

          As for McConnell, I don’t remember what he told the media. But the answer is almost certainly the obvious one – power. He and his party could reject the opposition nominee, so they did – as has happened in the vast majority of similar cases. I’d be truly surprised if there was a different reason controlling his decision.

          1. ” He and his party could reject the opposition nominee, so they did ”

            It’s one thing to reject a nominee by voting “no” in sufficient numbers that the answer is “no”, and it’s a different thing to reject a nominee by simply not bothering to vote or not. In terms of legitimacy, it’s a fairly significant difference. (Also making a difference: rejecting a nominee because of judicial temperament, and rejecting a nominee because they perceived as being of your party.)

            Back when Reagan was running for President, Conservatives were being stoked by Roe v Wade. So Ronnie promised to only nominate Justices who would vote to overturn it. (Since they couldn’t seem to work up enough interest in overturning it via amendment). This led to increasingly partisan confirmation hearings, as Ronnie’s team wanted to be sure they got an anti-abortion Justice seated. They weren’t sure they would get such a thing by selecting from the most qualified candidates, so they tried to push through Judge Bork. The fact that Bork’s qualifications for the Supreme Court consisted of A) he was strongly Conservative, and B) uh, we’ll think of something later. The D’s filibustered the nomination, and Ronnie caved and nominated someone who wan’t filibustered. Note: the non-partisan takeaway from this was that the D’s said “not this candidate”, not “you don’t get to pick the next candidate”. The rule didn’t change to “Presidents of the other party don’t get to nominate anyone” until Mitch.

          2. “Oh? You’ve reviewed all of the dozens of nominations that never got a vote, compiled a chart of all the sitting Senators of the time, and cross-referenced their political views with the views of the candidates and trending social approval in their states – and combined it with your mind-reading of the modern Republican Senators – to determine that only this once would a proposed nominee have passed the vote if it had passed committee? Even during those years when there was no committee controlling the vote?”

            Wikipedia has a convenient list.

    2. SCOTUS had no power to force a vote on the Garland nom.
      So, no, the only thing that’s a start of is a list of your delusions.

      1. Whether or not the SC could have done anything about the blatantly partisan manipulation of appointments doesn’t mean that people can’t notice that appointments have been manipulated in a blatantly partisan way.

  25. 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

    Only tangentially. The current 6-3 composition of the court is not seen as legitimate. Democrats won 5 of the last 9 Presidential elections, and the popular vote in 7 of those elections. And one of those Republican appointments was due to a particularly egregious example of political hypocrisy.

    When the composition of the court itself is seen as illegitimate any decision rendered by the court will be viewed with that much more skepticism.

    1. But the Democrats only won 5 of the last 11 Presidential elections, and only won a majority of the popular vote in 3 of those, while Republicans won 6 of those 11 elections, and majority of the popular vote in 4 of them.

      All of which has nothing to do with the fact that retirements and deaths of Supreme Court justices have absolutely zero to do with election cycles.

      1. And apparently also zero to do with advise and consent hearing cycles.

      2. “But the Democrats only won 5 of the last 11 Presidential elections, and only won a majority of the popular vote in 3 of those, while Republicans won 6 of those 11 elections, and majority of the popular vote in 4 of them.”

        You’re cherry-picking.

  26. I think that what the Supreme Court needs to get across is that it is starting to handle difficult issues by not acting – by letting elected officials handle them – rather than acting this way or that way. If it does that consistently, and if it succeeds in deflating the idea that it is a sort of oracle that decides social issues absent clear roots in the textual constitution, its popularity will matter less. And that may be better for the court as an intitution than ita popularity improving.

    The court would be much better off if it DIDN’T make itself the center of everyone’s attention, if, as Chinese philosopher Lao Tzu said is the mark of great leadership, when its work is done, people will say they did this themselves.

    1. “I think that what the Supreme Court needs to get across is that it is starting to handle difficult issues by not acting”

      What they need to do is be seen to be acting in a non-partisan way, reaching decisions in a way that is clear both to people hoping for one outcome, AND to people hoping for the other outcome.

      Just like baseball umpires. Call the strikes, strikes, and call the balls, balls, and get the close plays correct. That is the only way to not be seen as taking sides.

  27. There are lots of SC cases that are not looked upon well with historical hindsight: In no particular order: Korematsu, Scot v. Sanders, Plessy, Roe v Wade, and anybody can probably offer some more. But no case was more unpopular when it came out than Brown v. Board of Education What it lacked in support from the population of formerly-Confederate Southern states, however, was made up when Eisenhower used military force to enforce it. Now, if the President is unhappy with an unpopular SC ruling, that unpopularity would probably matter more.

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