The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court's low approval ratings in the aftermath of the overruling of Roe v. Wade in the Dobbs decision has led some to claim that the institution is in a "legitimacy crisis" (e.g. here, here, and here). The Court is indeed less popular now than at most other times in the recent past. On the other hand, its popularity remains as high or higher than that of the other branches of government. And its current poll ratings are not significantly worse than they were on a number of previous occasions over the last twenty years. Thus, claims of a legitimacy crisis are, at the very least, premature.
In the long-running Gallup poll, the most widely cited measure of various institutions' popularity, the Supreme Court's approval rating stood at 43% in July, compared to 55% who disapprove. That's is bad. But it's as good or better than the standing of the other two branches of government. Despite some recent improvement, President Biden's approval rating stands at an average of 42.5% in the 538 website's aggregation of polls. He has an average disapproval rating of 53%. Biden sits at 44% approval and 53% disapproval in the most recent Gallup poll. Congress's approval rating is chronically low, most recently clocking in at 17% in the same July poll that gave the Supreme Court its weak 43% rating.
If the Supreme Court's low ratings are enough to create a legitimacy crisis, Biden is in the same boat, and Congress is in far more dire straits than either. Biden's most likely 2024 opponent—Donald Trump—is even more unpopular than Biden himself. Thus, there is a good chance that the presidency will be held by an unpopular figure for years to come.
Of course Biden's popularity might increase. Perhaps even Congress might become more popular. But the same is true of the Supreme Court, which has a long history of bouncing back from negative public reaction to unpopular decisions.
It may be that Congress and the presidency are also facing a crisis of legitimacy. The generally low ratings of all three branches of government may be a sign of declining faith in institutions across the board. But, if so, it's not a problem specific to the Supreme Court, or primarily caused by its recent rulings. Moreover, the unpopularity of the president and Congress weakens their ability to curb the Court's power. In a confrontation between unpopular politicians and unpopular judges, the former could end up losing.
It is also worth recalling that the Court's current relatively low polling numbers are far from unprecedented. It's 43% approval rating today is very similar to the 42% rating (with 48% disapproving) it had in 2005, after the highly unpopular ruling in Kelo v. City of New London. But the Court's ratings soon recovered. I literally wrote the book on why Kelo was an awful ruling. But even I can't seriously claim that it did long-term damage to the Court's standing. The Court also stood at 42% (with 52% disapproval) in the summer of 2016 (a result possibly influenced by the Court's unpopular decision upholding racial preferences in college admissions that year). Again, it bounced back.
Perhaps this time the Court's popularity won't recover, or won't recover to the same extent. It is notable that this year's Gallup numbers are actually similar to those of last summer, when the Court was at 40%. But it is also likely that Dobbs and the negative reaction to it forestalled what would otherwise have been a gradual recovery from last year's low numbers. Such a gradual recovery could happen over the next year or two, as memories of Dobbs recede and public attention focuses on other issues.
Moreover, the numbers could easily go up if the Court makes popular decisions in prominent cases. That is likely to happen as soon as next year, when the Justices are expected to issue a high-profile ruling curbing racial preferences in higher education. Racial preferences in education are overwhelmingly unpopular, and majority public opinion would probably welcome a decision striking them down.
Another sign that the Court may not be facing much of a legitimacy crisis is that, even in the aftermath of Dobbs and other recent conservative rulings, most Democratic politicians are not advocating court-packing or other measures to curb the justices' power, as part of their platform for the upcoming 2022 election. Abortion is, of course, a major issue in the campaign. But measures to clip the wings of the Court are not. If the Court's legitimacy was as damaged as some claim, we should expect Democratic political strategists to seize on that fact, and exploit it. The decision of most of them not to do so is a notable dog that didn't bark—or at least isn't barking very much.
That doesn't mean the Court is entirely out of the political woods. The increasing polarization in perceptions of the Court—with only 28% of Democrats viewing it favorably, compared to 73% of Republicans – is a potential danger. Even if the Court's overall popularity isn't terrible, Democrats could potentially try to move against it, if their political base becomes angry enough.
A Democratic Congress could try to enact court-packing, or a Democratic president could choose to disobey rulings the party's supporters strongly disapprove of. Democrats might ask: If Republicans like Donald Trump can defy political norms and undermine the Constitution when they find it convenient to do so, why not us? I described such scenarios in a 2018 post, but also noted various obstacles to their occurrence. For the moment, nothing of the sort seems likely to happen in the short to medium term.
At the same time, however, court-packing has become a part of mainstream political discourse in a way that wasn't true five or ten years ago. The norm-breaking political behavior of the right has helped weaken norm-based taboos on the left. That doesn't mean it is likely to happen. The odds are still against it, in my view. But it is a much more plausible scenario than it would have been if the idea had remained beyond the pale.
Some, of course, would argue that public opinion is irrelevant to legitimacy. What really determines the Court's legitimacy is not approval ratings, but the quality of its decisions. If you think Dobbs was a horrible ruling that indefensibly gutted a constitutional right, you probably believe that would still be true, even if majority public opinion welcomed the decision. The same goes for other Supreme Court decisions you might consider to be especially awful. Alternatively, maybe legitimacy depends on whether the Court uses the right methodology, such as originalism or living constitutionalism. A wrong decision may still be legitimate if the justices honestly tried to apply the right interpretive theory in the process of reaching it. But not if they reached it by using the "wrong" kind of reasoning.
This may be the correct normative approach to assessing the Court's rulings. I certainly agree that popular rulings are sometimes badly wrong, and unpopular ones right. I also think some methodologies are better than others.
But we should avoid conflating the legitimacy of the Court's decisions with their correctness. At least in one significant sense of the former term, it refers to the Court's political standing, rather than to the soundness of its rulings. In addition, if legitimacy just comes down to the correctness (or lack thereof) of the Court's rulings, then the former ceases to be a useful concept. Any debate over legitimacy will simply devolve into a debate about the quality of the Court's rulings or the soundness of its methodology.
Even if you don't care about the Court's standing for its own sake (I generally don't, myself!), it is important to remember that the Court must have at least some substantial political support in order to ensure that its rulings will be obeyed. As Alexander Hamilton famously wrote, the judiciary doesn't control either the government's "sword" or its "purse" and therefore depends on others to enforce its decisions. For that reason, among others, the Court's legitimacy—defined as its standing with public opinion—does make a difference. If the Court become unpopular enough, the other branches of government could move against it, or just simply ignore its decisions when they don't like the result.
While the Court's popularity has fallen, it has not gotten to the point where its political standing is seriously threatened. A legitimacy crisis could still occur in the future, especially if the justices' popularity declines still further. On the other hand, past history suggests that it could instead rise.