In examining this month’s Pew Research Center data on Americans’ views of the Supreme Court, a somewhat puzzling question presents itself. That question isn’t why the court has just fallen to a new low in the popular estimation, because the explanation for this development is obvious: already sporting record unpopularity earlier this year, June’s Dobbs v. Jackson ruling has only underscored the threat the court poses to basic rights and the obscenity of empowering an unelected council of judicial functionaries in robes to oversee them.
No, what’s most striking is that the Supreme Court has managed to remain so resoundingly popular for so many decades. Among Democrats and Republicans alike, in fact, it until quite recently commanded solid majorities in favorable opinion — oscillating somewhat depending on which party held the White House but basically maintaining broad public support.
For that reason, those who view the warm perception of powerful institutions as an end in itself are liable to be especially troubled by Pew’s latest findings. Not only is the court manifestly unpopular, but opinions of it now map cleanly onto partisan identity as well. Democrats, who still held an overwhelmingly favorable view of the Supreme Court during the first part of the Donald Trump presidency, are now strongly negative toward it. Republican support, on the other hand, steadily declined after Bush II and had sunk to a record low by the end of Barack Obama’s second term. Today, just as unsurprisingly, conservatives have suddenly rediscovered their faith in the institution and are predisposed to see it in a positive light.
In this context, it’s distinctly possible to imagine a fresh round of discourse concerned with reestablishing the court’s legitimacy as a nonpartisan and extra-political institution. If perceived as a partisan instrument — or so the argument goes — then its integrity is clearly undercut; ergo, it follows that reformers should aim to rebuild the institution’s reputation as a place of dispassionate deliberation and enlightened compromise. As Samuel Moyn remarked to Jacobin after the death of Ruth Bader Ginsburg in 2020: “The standard centrist discourse has been that [Mitch] McConnell stole the court, and [that] it needs to be put back as a space of elder compromise between center-left and center-right.” That was more or less the thrust of various proposals introduced during that year’s Democratic primaries by figures like Pete Buttigieg and Elizabeth Warren who, even amid talk of court-packing, still wanted to “depoliticize” the institution again rather than defang or disempower it.
If nothing else, proposals in that vein are least made in the spirit of reform. The problem, of course, is that a body like the Supreme Court is inherently political regardless of whether it’s perceived to be or not. Conservatives did not suddenly transform apolitical rulings into ideological edicts by gaining a majority, just as liberals would not be reestablishing some imagined equilibrium that transcends ideology by adding a few more centrist justices. Legal opinions, especially when concerned with fundamental questions of morality or ethics, are by their very nature “political” in that they express value judgements — judgements that very often reflect the familiar differences between categories like left and right, liberal and conservative.
The Dobbs decision has certainly brought this reality into sharper and uglier relief. But it will persist, independent of whether the fictional image of the Supreme Court, where it exists in some fantasy realm beyond the reach of politics, is successfully upheld or not. If there’s an optimistic takeaway from Pew’s latest data, then, it’s that the court’s crisis of legitimacy might be seized on as an opportunity rather than looked on woefully as a problem.
For one thing, the Right’s sinister judicial coup will make it increasingly difficult for anyone to maintain the traditional artifice of neutrality. For another, it has underscored yet again the extent to which some of America’s most powerful institutions quite actively work against majoritarian democracy. Five of the court’s six conservative justices were appointed by Republican presidents who lost the popular vote but were elected courtesy of the anachronistic electoral college system. The Senate, meanwhile, is easily the most unrepresentative legislature found in any liberal democracy today. America, to put it mildly, is badly in need of sweeping democratic reform.
For that reason, the increasing polarization of attitudes around the Supreme Court may present a unique opportunity — not to repair its damaged reputation, but to slacken its reactionary stranglehold on American democracy for good.