Why is the Supreme Court’s approval rating so low?


The Supreme Court opens its 2022 term on October 3 with its lowest public approval rating in modern history, something the justices are well aware of. One of the reasons is that the court has made some very controversial decisions in the last quarter, including the Dobbs decision which overturned Roe vs. Wade.

But that’s only part of the story.

Other prominent politicians have clouded Americans’ views of the Court, and public confidence in democratic institutions and processes has also fallen more generally.

It is important. Without independent power to enforce their decisions, judges rely on public respect for the legitimacy of the court. Yet they are not necessarily responsible when trying to improve public approval for the court.

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During his last term, the court took a sharp turn to the right and decided many high-profile cases by a 6-3 conservative majority.

More particularly, in Dobbs v. Association of Jackson Women’s Health Organization, the court – for the first time in its history – deprived a civil liberty by ruling that there was no constitutional right to abortion. By reversing the nearly 50-year-old precedent of Roe vs. Wadethe conservative majority ignored the fact that more than 60% of Americans support access to abortion in all or nearly all circumstances, and wanted this right preserved.

Research shows that unpopular decisions can turn the public against the court – like Dobbs did.

Half of Americans support abortion on demand

Supreme Court Succession Process

But Senate Republicans have also hurt public support for the court by openly politicizing Supreme Court vacancies over the past decade.

It started with the death in February 2016 of conservative judge Antonin Scalia. Led by Senate Majority Leader Mitch McConnell (R-Ky.), the Republican-controlled Senate declined to consider President Barack Obama’s nomination of moderate Merrick Garland to succeed him. McConnell argued that with just 269 days until the next presidential election, the Senate should wait for the country to choose a new leader to consider a Supreme Court nominee. The year-long delay violated a longstanding tradition that every candidate not withdrawn by the president should get a hearing and a vote. As a result, a year later, newly-elected President Donald Trump nominated conservative Neil M. Gorsuch, whom the Republican-led Senate quickly confirmed.

Just four years later, liberal Justice Ruth Bader Ginsburg died just 46 days before the 2020 presidential election. McConnell ignored her election-year rationale and led the Senate to confirm conservative Amy Coney Barrett as judge on a strict vote to the party line, at a time when in many states early voting for the presidency was already underway.

Between those events, Justice Anthony M. Kennedy retired — which some reports say came after a coordinated persuasion campaign by the Trump administration in 2018, demanding that his preferred successor and former jurist Brett M. Kavanaugh can take his seat. While Kavanaugh was confirmed, it came after a contentious confirmation battle that included accusations that he sexually assaulted a woman as a teenager.

The controversies over each of those nominations and confirmations likely contributed to lower public support for the court over those years, as you can see in the Gallup polls. The scholarship shows that Senate actions on Supreme Court appointments can shape public attitudes toward the court, even if judges have no control over how the Senate handles appointments.

Attacks by political actors and the media

In response to all of this — both the Senate’s handling of vacancies over the past six years and the court’s extremely conservative rulings over the past quarter — the president, members of Congress and some media have criticized the court.

For example, shortly after Dobbs decision, President Biden spoke these harsh words: “We cannot allow an out-of-control Supreme Court, working in conjunction with extremist elements of the Republican Party, to take away our freedoms and personal autonomy.”

Research finds that when the president, political candidates, or the media criticize the court, they can influence Americans to have a low opinion of the court, especially among those who disagree with its rulings.

Declining public trust in democratic institutions and processes

Scholarship demonstrates that public support for a political institution – such as the Supreme Court – is linked to support for democratic institutions and processes more generally. Unfortunately for the court, these have declined in recent years. For example, public approval of Congress has declined dramatically over the past 20 years. Only about 20% of the American public say they are very confident in the integrity of elections. And almost 70% of Americans now believe that American democracy is in crisis.

Biden’s Judiciary Committee is concerned about the legitimacy of the Supreme Court. So what exactly is “legitimacy”?

All of this is bad news for public opinion on the court – even if the judges themselves cannot influence much of the above, from Senate behavior to partisan criticism to how people perceive American democracy.

In the Federalist Papers, Founding Father Alexander Hamilton wrote that, unlike Congress or the Presidency, the Supreme Court lacks both a purse and a sword, meaning it is unable to guarantee – whether by spending or by force – let the Americans follow his decisions.

Accordingly, the judges must rely to a large extent on the goodwill of American citizens and the agreement of the other branches to ensure that its rulings are followed. If Americans don’t trust the court, that trust is on shaky ground.

We think judges can probably regain the public’s trust by moderating their decisions, if they so choose. But they cannot affect many other factors influencing the court’s public approval. Restoring public esteem will be difficult. Given this, the president and Congress will likely continue to propose various changes to how the court will operate.

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Paul M. Collins Jr. is a professor of legal studies and political science at the University of Massachusetts Amherst and co-author of “The President and the Supreme Court: Making Judicial Decisions Public” (Cambridge University Press, 2019).

Artemus district is Professor of Political Science and Associate Professor at Northern Illinois University School of Law and co-author of “The Puzzle of Unanimity: Consensus on the United States Supreme Court” (Stanford University Press, 2013).


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