The reputation of the Supreme Court in the public has been damaged. Fewer than one in three Americans think the institution is doing a good job, putting the court just above the sewer where congressional and media approval resides.
Two decades ago, the court’s approval rating was 50 percent, and 60 percent of Americans thought the court generally did a good job. One reason for the decline: the court’s tradition of institutional silence about its decisions puts its reputation in the hands of supporters who dominate our political discourse.
The court’s job is to respect and faithfully interpret the Constitution, not to make people happy. But because the executive and legislative branches of government often cede their duties to the court, and our most influential political voices shape decisions through political lenses, the court is sidelined by the faltering institutions of our country.
Court never made everyone happy. In the last 10 years alone, decisions on health care, abortion and LGBT issues have angered conservatives; and decisions on guns, corporate power, and abortion led liberals to declare the court political and illegitimate.
The media also play a key role in the bad reputation of the court. Controversial decisions are often primarily covered in the context of broader national politics rather than the Constitution. This may explain why Justice Clarence Thomas’s view that the court should review critical decisions on marriage and contraception received so much media attention … while the dissent of five other conservative justices reached so little.
Party anger and media bias probably explain why the politics inherent in court culture are also under the microscope. After all, the court’s justices are appointed by politicians and approved by other politicians, and judges are often biased, like good friends and fierce opponents of Antonin Scalia and Ruth Bader Ginsburg.
When he can’t be won in court, it’s time to tarnish him. And by remaining silent, the court has taken its reputation out of its own hands and placed it in the hands of supporters who dislike its decisions and a media that prefers controversial clicks to reasoned discourse.
Again, politics was always 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, politicians and activists.
Many critics point to power politics that led to recent decisions overturning gun control and national abortion rights. Then-Senate Majority Leader Mitch McConnell kept Barack Obama’s nominee Merrick Garland out of court in 2016, paving the way for three conservative Trump nominees.
But the court was always up to its neck in politics. Ronald Reagan’s nominee Robert Bork was considered qualified for the court, but his views on states’ rights led Senator Ted Kennedy to say that Bork’s presence on the court would restore segregation. Likewise, in 2003, Democrats opposed Bush’s lower court nominee in part because of his Hispanic origins—they didn’t want a Republican to nominate the first Hispanic Supreme Court justice.
Additional politics have been at play since Chief Justice John Roberts, a nominee of George W. Bush, allegedly tried to steer some of the court’s decisions with an eye on the court’s legitimacy. This is reportedly why he was a key vote to keep the Affordable Care Act intact and may be why he voted for Mississippi’s pro-life law but against overturning Roe v. Wade in June.
After years of being framed as a partisan actor, the court’s reputation cannot be repaired by a traditional PR campaign, even if the judges could agree on a strategy. This means that other people create his reality.
Can the reputation of the court recover? Of course, but not by itself. By its very nature, the court is only a backward indicator of our nation’s politics. We are a republic in crisis and it is not surprising that the crisis has reached the court.
