A recent Gallup poll finds that the Supreme Court’s approval rating has fallen to 40% (with 53% disapproving). This is the lowest rating the Court has had in the twenty years Gallup has been asking the question. Last year, when the Court’s approval rating reached a long-time high of 58%, I pointed out that its growing popularity makes it less vulnerable to political attacks intended to curb its influence, such as court-packing. Now that the Court has become much less popular, it’s only reasonable to ask whether the reverse is now true: Could its newfound unpopularity might make it more vulnerable to court-packing and other similar measures?
I think the answer to this question is “yes.” Other things equal, a relatively unpopular court has less political capital to call upon then one that a large majority of voters like. The more people dislike the Court, the less opposition there will be to measures intended to curb its authority, or even completely neuter it (the likely result of court-packing).
Certainly, the justices themselves seem to be concerned about the potential damage to their standing, which is why several of them have recently made public speeches and statements disputing the idea that their rulings are “political.” Though they might not want to admit it, the justices recognize that the Court operates within political constraints. If they offend too many people too much, there could be a political backlash that the Court will be unable to weather.
That said, I think it is premature to conclude that the Court is in serious danger. While it may be more vulnerable now than it usually is, that vulnerability may not last long. As I noted in a 2018 post in this subject, there is a long history of the Court’s reputation suffering because of controversial rulings and other events, only to bounce back quickly. and the Court’s opponents will likely find it very difficult to take advantage of its window of vulnerability.
The previous record-low approval rating of 42% first occurred in 2005, in the aftermath of the Court’s highly unpopular ruling in Kelo v. City of New London. But the Court’s public standing quickly recovered after that. I literally wrote the book on why Kelo was a terrible decision. But even I can’t seriously claim that the ruling did significant long-term damage to the Court’s public legitimacy. There is a similar story about the public reaction to such controversial and widely disliked rulings as Roe v. Wade, Bush v. Gore, Citizens United, the school prayer cases, the flag burning cases, and others.
In each of these situations, partisan critics of the ruling predicted—or at least hoped—that it would do long-term damage to the Court’s reputation. But, each time, public attention moved on to other issues, and the Court’s approval rating soon recovered.
This article was originally published on Reason.com. Read the full article.
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