Why is American public trust in their Supreme Court so low?

Why is American public trust in their Supreme Court so low? James Wallner on how the legislative branch of the U.S. government has transformed the judiciary.

The U.S. Supreme Court plays a bigger role in American democracy than any top court plays in any democracy in the world—and as it opens session on its current term, the Court finds itself in an unusual situation: Public trust in the institution has now dropped below 50 percent. According to a recent Gallup poll, only 47 percent of Americans now say they have either “a great deal” or “a fair amount” of trust in the judicial branch. That’s a decline of 20 points in only two years. Political tensions over the Court aren’t new, but they’ve grown especially acute after its recent decision in Dobbs v. Jackson Women’s Health Organization, in which the majority opinion overturned 1973’s Roe v. Wade and almost 50 years of precedent—declaring that the U.S. Constitution doesn’t confer the right to an abortion. Now, with many Republicans celebrating the Dobbs decision as a moral and political victory, leading Democratic politicians have expressed support for packing the Court with additional justices in order to move the balance away from its current conservative majority; progressive activists have protested outside the private homes of justices; and the federal government recently installed protective fencing in front of the Court itself. All of this around an institution Americans have long tended to consider above the partisan fray—“to call balls and strikes,” in the words of the chief justice, John Roberts, “and not to pitch or bat.” So, what’s happening?

James Wallner is a senior fellow at the R Street Institute and the author of three books on the U.S. Senate. To Wallner, the deeper sources of the challenges facing the Court aren’t in the judiciary itself but rather in America’s legislative branch. Over recent decades, Wallner notes, analysts have come to see America’s executive branch as becoming more and more powerful—and accordingly, more and more politicized. Those analysts have tended to see the primary cause behind expanding executive authority as lying with a Congress that’s increasingly allowed the executive to take on traditionally congressional responsibilities—such as crafting budgetary priorities and approving military conflicts—to the president. Now, Wallner says, Congress is increasingly enabling the same dynamic with the Supreme Court—effectively politicizing it in the process, transforming public perceptions of the Court into a body that makes laws rather than one that interprets them.

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Eric Pfeiffer: How unprecedented is the steep decline we’re seeing with American public trust in the U.S. Supreme Court?

James Wallner: It’s certainly quite severe. But back in the mid-1970s, public trust in the Court was around 45 percent. It peaked at about 56 percent in the mid-1980s and has hovered around 50 percent for the past 25 years. So while trust has declined recently, that decline isn’t without precedent.

As to why it’s happening today, there will be a lot of controversy around that question, but to me, there’s a clear answer: The U.S. Supreme Court has been effectively tasked by the American people, and by the other branches, with doing something that’s just not its job. If you ask Americans on the street what the most powerful branch of the U.S. government is, often you’ll hear them say the executive branch—the president. But increasingly you’ll hear them say the Supreme Court. And it’s striking, because as Alexander Hamilton, one of the United States’ more renowned founders, said, the Court is actually the weakest branch: They don’t have the purse; they don’t have any executive or legislative decision-making power.

Today, though, both the Democrats and the Republicans have come to see the Court as just another policy-making factory that they want to control and ultimately enact policy through, essentially to mold America’s future according to their vision. But when you look to a high court to resolve the major controversial issues in your society, that will transform it into a political branch. It places the judiciary in the political fray as opposed to in a position where it can credibly adjudicate disputes between parties. And when that happens, you’re going to have a lot of people not liking its decisions—and starting to distrust it as an institution.

Pfeiffer: Why would the U.S. Congress and the White House want to cede decision-making authority to the Court? Isn’t politics all about consolidating power?

Wallner: Because it’s a lot easier to change the U.S. Constitution by winning the presidency, getting a majority in the Senate, and then getting justices on the Court that you can agree with, then it is to craft legislation, pass it with a filibuster-proof congressional majority of 60-plus votes, and then get a president to sign that into law.

When you look at how the U.S. House of Representatives historically crafts legislation, first they negotiate; then they persuade; and then ultimately, they compromise. That’s how the U.S. Congress makes decisions. And if you lose, you can come back at it. Everything legislated is kind of provisional in that sense. It took more than 100 years for the women’s suffrage movement to accomplish its goals. But now, the attraction is increasingly to look to the Court to change the law in more final terms. And that’s especially tempting when your politics is animated by highly existential concerns—such as threats to the climate from carbon emissions or threats to the country from terrorists who want to destroy it. It’s very attractive to litigate political issues in environments where your opponents can’t do anything about it, and it almost removes these issues from the political sphere, because there’s this sense attached to the Court that when it makes decisions, it’s invoking a higher authority than democratic law.

“There’s a tendency in American public opinion at the moment to think that the Court has never been more divisive than it is now. But in reality, this is what courts do. What’s changed is the extent to which American politicians, and the American public, have tried to shape the Court to be outcome-oriented. What that’s done over time is to undermine the institution for people that don’t like what it’s doing—which undermines their willingness to defer to the Court’s judgment when it does make decisions.”

“The United States has come a long way from the early days of the republic when a president like James Madison might nominate someone for the Court and the Senate simply confirms them. Hearings today are polarizing, contentious, and full of animosity. The primary reason why is that, in the back of their minds, Americans know that they matter—because we’re tasking the Court with changing the Constitution. Americans have transformed the Court from one of three coordinate branches, all at the same rank, to an Olympian arbiter that effectively presides over the U.S. political system.”

“The U.S. Congress avoids issues like abortion, health care, and immigration that divide the parties. They avoid those issues because it would fracture party unity and control—because the American public at large has nuanced and diverse views on cultural and economic issues. So, Congress ends up punting to the executive branch and to the courts. This is strikingly common in both parties.”