(Credit: Lorie Shaull/Flickr)
The Supreme Court’s reputation with the public is in tatters. Fewer than one in three Americans think the institution is doing a good job, putting the court just above the sewers where approval for Congress and the media lives.
Two decades ago, the court’s approval was at 50 percent, and 60 percent of Americans thought the court generally did its job well. One reason for the drop: the court’s tradition of institutional silence about its decisions puts its reputation in the hands of the partisans who dominate our political discourse.
The court’s job is to uphold and interpret the Constitution faithfully, not make people happy. But with the executive and legislative branches often turning their duties over to the court, and our most influential political voices framing decisions through political lenses, the court has been dragged down in the wake of our country’s floundering institutions.
The court has never made everyone happy. In the last 10 years alone, decisions on healthcare, abortion and LGBT issues have angered conservatives; and decisions on guns, corporate power and abortion have led liberals to declare the court political and illegitimate.
The media also play a key role in the court’s poor reputation. Controversial decisions are often primarily covered in the context of larger national politics instead of the Constitution. This may explain why Justice Clarence Thomas’ view that the court should revisit critical marriage and contraception decisions has gotten so much media attention … and the five other conservative justices’ disagreement has reached so little.
Partisan anger and media bias probably explain why the politics inherent in the court’s culture are also under a microscope. After all, the court’s justices are nominated by politicians and approved by other politicians, and justices are often partisan, such as good friends and fierce opponents Antonin Scalia and Ruth Bader Ginsburg.
When one can’t win the court, it’s time to smear it. And by being quiet, the court has taken its reputation out of its own hands and put that reputation in the hands of partisans who dislike its decisions and a media that prefers controversial clicks over reasoned discourse.
Again, politics has always been part of the court. But its reputation as a purely partisan political actor is relatively new and comes after years of attacks on its legitimacy by influential media outlets, politicians and activists.
Many critics point to the power politics that led to recent decisions overturning gun control and a national right to abortion. Then-Senate Majority Leader Mitch McConnell kept Barack Obama nominee Merrick Garland off the court in 2016, paving the way for three conservative Trump nominees.
But the court has always been neck-deep in politics. Ronald Reagan nominee Robert Bork was considered qualified for the court, but his views on states’ rights led Sen. Ted Kennedy to say that Bork’s presence on the court would bring back segregation. Likewise, Democrats opposed a lower-court Bush nominee in 2003 partly because of his Latino descent — they didn’t want a Republican to nominate the first Hispanic Supreme Court justice.
Additional politics have been at play ever since Chief Justice John Roberts, a George W. Bush nominee, has allegedly tried to steer some court decisions with an eye toward the court’s legitimacy. It is allegedly why he was the key vote to keep the Affordable Care Act intact and may be why he voted in favor of a pro-life Mississippi law but against overturning Roe v. Wade in June.
After years of being framed as a partisan actor, the court’s reputation can’t be fixed by a traditional PR campaign, even if the justices could agree on a strategy. This means that other people are creating its reality.
Can the court’s reputation rebound? Sure, but not on its own. By its nature, the court is just a lagging indicator of our nation’s politics. We are a republic in crisis, and it’s no surprise that the crisis has reached the court.