WASHINGTON, D.C. — Sometime in the next two or three weeks, the Supreme Court will release a decision on abortion rights that probably will rank among its most controversial in decades.
The justices will take that step as their standing with the public sinks to its lowest point in decades.
For years, the Supreme Court enjoyed greater trust from Americans than the two elected branches of the federal government, but that status has eroded as Americans have increasingly seen the court as ideologically driven, several polls have shown.
Public approval of the high court has been dropping for two years. It took a further sharp downward slide last month after news broke that the justices were on the verge of overturning Roe v. Wade, the half-century-old ruling that has guaranteed abortion rights nationwide. Roughly 60% of Americans consistently have opposed overturning Roe.
The justices, of course, are not supposed to make decisions based on public opinion — part of the point of giving power to life-tenured judges is to let them make principled decisions against the majority’s views.
But as the Supreme Court justices themselves have often said, public acceptance of their decisions depends on the perception that they are, in fact, based on principle, not politics. An increasing number of Americans doubt that.
Through the 1980s and ’90s and into the first years of the 2000s, more than 60% of Americans held favorable opinions of the court, according to polling by the Pew Research Center.
Gallup, too, in a long-running series asking about “trust and confidence” in American institutions, generally found the court ranking in the middle — far above such mistrusted groups as Congress and big business, but not as trusted as the military or small business.
It was almost inevitable, however, that the growing partisanship of the last two decades, which has caused many Americans to view nearly all institutions through the lens of Team Red versus Team Blue, would harm the standing of the court, which views itself as apart from both.
After President Barack Obama’s election in 2008 and his appointments of Justices Sonia Sotomayor in 2009 and Elena Kagan in 2010, Republicans’ opinion of the court dropped sharply. That plunge on the Republican side deepened in 2015 after the court’s Obergefell v. Hodges decision, which legalized same-sex marriage nationwide.
With the election of President Donald Trump in 2016, Republican support for the court rebounded, but with his three conservative appointments — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — and the growing likelihood that they would take an activist role in overturning liberal policies, Democrats began to turn negative. Gorsuch’s confirmation in 2017, to a seat that Senate Republicans held open for a year by refusing to consider Obama’s nominee, Merrick Garland, appeared to mark a turning point for Democratic opinion, according to Gallup’s data on trust in the court.
Even with that decline, however, “approval of the court stood at 66% in September of 2020, the week before Justice (Ruth Bader) Ginsburg died,” said professor Charles Franklin, who directs the Marquette University Law School poll, which currently surveys opinion about the court every two months. By July of last year, approval had dropped to 60%.
By January of this year, with increasing attention to the potential rollback of abortion rights, the court’s standing had declined further and was as negative as it had been in nearly four decades, Pew found. In its survey, 54% of Americans held a favorable view of the court and 44% were unfavorable — notably worse than the roughly 70% to 30% split that surveys had commonly found over the prior few years.
In both the Pew and Marquette surveys, the drop in approval of the court came mostly among Democrats. Roughly two-thirds of Democrats viewed the court favorably in 2020, but that number dropped to just under half by the start of this year, Pew found. Among liberal Democrats, only just over one-third viewed the court positively.
Statements by Gorsuch and Kavanaugh, and to a lesser extent Barrett, in their confirmation hearings that appeared to acknowledge Roe v. Wade as a precedent might have caused some Democrats to hold off in changing their mind about the court. In May, when the end of Roe moved from a possibility to a near certainty, the erosion in support for the court among Democrats turned into a collapse.
In Marquette’s latest poll, taken just after a draft opinion that would overturn Roe became public, approval of the court dropped to 44% — 10 points lower than it had been in March. Approval dropped 23 points among Democrats — from 49% in March to just 26% in May, the poll found. Approval among independents also dropped slightly, while approval from Republicans moved a bit higher.
The result: “Political polarization in views of the court has just dramatically widened,” Franklin said. The poll found a 42-point gap between Republicans and Democrats in their approval, compared with a gap of 15 points two months earlier.
Disapproval of the court among Democrats may be driven even higher by the continuing attention to the role that Justice Clarence Thomas’ wife, Ginni Thomas, played in backing efforts to subvert the 2020 election, a topic that the House committee investigating the Jan. 6 riot at the U.S. Capitol has been looking into.
Americans are not only more ideologically divided over the court, they are also more inclined to see the court as ideologically driven.
Three years ago, half of Americans saw the court as “moderate”; now one-third do, Marquette found. A majority of Americans now see the court as conservative, with nearly 1 in 4 seeing it as “very conservative.” Only 1 in 10 Americans see the court as liberal.
The problem for the court is twofold: If Americans see the institution as ideologically driven — just another political body — they’re less likely to accept the vast power that the justices hold. And if the court consistently makes decisions that go against the preferences of the majority, it could face the sort of crisis that has endangered its standing in the past.
Already, in January, Pew found that the share of Americans who view the court as holding too much power had risen over the last two years.
That remains a minority view: Close to 6 in 10 Americans said in January that the court held the “right amount” of clout. Among Democrats, however, the share saying the court holds too much power had risen to 40%. That share probably will increase after the expected decision on abortion.
And abortion, of course, is not the only issue on which the majority of the justices appear set on imposing the policy preferences of a minority of the country. Unless a last-minute change of mind sets in, the justices seem likely in the final weeks of their term to also significantly cut back on the power of the federal government to act against climate change. They are also likely to restrict the authority of states to regulate guns. Public opinion is mixed on gun regulation, but a sweeping pro-gun ruling would probably be unpopular.
The justices are, of course, sensitive to the idea that they are partisan actors.
Judicial authority depends on “a trust that the court is guided by legal principle, not politics,” Justice Stephen G. Breyer said last year in a speech at Harvard Law School.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
Justice Barrett stressed a similar theme a few months later during a speech at the University of Louisville.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said. “Judicial philosophies are not the same as political parties.”
That’s a tough position to uphold when so many of the justices’ positions on the most controversial cases can so easily be forecast simply by knowing who appointed them.