Studies have historically highlighted longitudinal continuity in public support for the Supreme Court as an institution – even in the aftermath of particularly divisive decisions. These trends have eroded as of late, with Independents and Democratic-leaning voters increasingly likely to relay disapproval of the Court’s decision-making. This article serves to frame these developments in a broader theoretical context. In particular, longstanding theories in the social sciences speak to a difference among the public’s views of the Court as an institution versus their support or opposition toward particular decisions. Yet, in light of these new developments, it may be necessary to re-examine our understanding of the status quo.
Recent years have seen a notable increase in attention paid to the Supreme Court. What today seems to be a constant point of discussion in our national discourse was once most commonly reserved to moments of particular importance. For example, Gallup and other high-profile polling firms like Emerson, Monmouth University, and the Pew Research Center routinely field surveys on public support for the president and other elected officials, and this trend has existed for decades. Yet, save for publicly notable events like nomination hearings, similar endeavors to poll public support of the Supreme Court was often reserved for a single annual survey – if even that. Gallup itself began polling support for the Court in 1973, yet it did not become an annual exercise until a decade later. Even then, the institution was rarely the focal point of any poll, and instead was often the focus of a small collection of prompts from a larger question pool.
The lack of consistent data could understandably yield concerns for researchers, insofar as empirical inferences are their most robust with access to large volumes of reliable data. Yet, this concern was often overlooked because there was hardly any real volatility in how the public framed support for the Court as an institution. Looking at Gallup’s data, the percentage of respondents who claimed to have a great deal, quite a lot, or at least some confidence in the Supreme Court rarely fell below 75% between 1983 and the 2010s. For comparison, the highest observed average support percentage for any sitting president during the same period was George H.W. Bush with 60.9 percent. Even then, presidential support is notoriously volatile – capable of considerable ebb and flow as notable events compel administrations to make in politically divisive decisions. President Biden himself has seen his net approval drop from 57% at his inauguration to (most recently) around 41%.
Nonetheless, the point of these comparisons is to illustrate how support for the Court as an institution had historically remained strong and consistent. This even in the face of some of the most divisive rulings in the Court’s history – most notably Bush v. Gore (2000). Yet, support often remained robust, even among disenfranchised partisans on the losing side of politically salient decisions. More recently, however, we have observed a discernable change in public perceptions of the Court. In the last decade, net disapproval has outweighed net approvals. When this trend most recently emerged in the mid-2010s, it was only the difference of three percentage points with a considerable percentage of No Opinion respondents (11%). Even then, it had all but disappeared by 2018.
Beginning in 2021, however, net disapproval outweighed approvals by 13%. As of September 2023, this has risen to 17%. The lion’s share of disapproval, as one might expect, emerging from those who identify as Democratic Party voters and Independents.
How do social scientists explain these dramatic developments? To best understand how the literature frames support for the Supreme Court, it is important to understand how we can frame different regimes of support in the context of political institutions.
Much of our understanding on public support for the Supreme Court emerged from a collection of studies beginning in the 1970s, though the most endearing and empirically driven analyses began to emerge in the 1990s. While there is a collection of works that precede it, The Etiology of Public Support for the Supreme Court (1990) by Greg Caldeira and Jim Gibson in the American Journal of Political Science provides among the best primers on this field. Nonetheless, these works center on non-mutually exclusive regimes of support known as specific and diffuse support.
Specific support encompasses the most traditional elements of reactionary support and can colloquially be referred to as ‘case-level’ support in this context. In essence, it stands to explain how individuals support or oppose the Court as a direct response to individual decisions. Survey questions that center on approval of particular cases – e.g., Dobbs (2022), which overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) – best demonstrate this support regime, whereby individuals will provide support or opposition in the context of individual (i.e., specific) decision-making. Alternatively, diffuse support is inherently a holistic view of the Court as an institution. Questions that contend with the Court’s support or opposition as a whole (e.g., Do you approve or disapprove of the way the Supreme Court is handling its job?) are best suited to frame this level of support.
You might be wondering; how could some individuals whole-heartedly disapprove of the Court’s decisions but still support it as an institution? Interestingly enough, social scientists are not as divided on this explanation as one might think. For nearly a half-century, scholarship has bridged these two regimes through what is referred to as the Myth of Legality. Rather than providing an extended discussion on how this concept manifests itself, it can best be summarized with a simple assessment: The public supports the Court as an institution because it is believed to retain legitimate institutional power.
That is, because the Court is a constitutionally-endowed institution made up of jurists, who by the same foundation retain power and status separate from the other political branches, the public is drawn to believe the justices’ decisions stem from a legitimate source of political power. It is the same train of thought that explains why the other branches coalesce to abide and execute the Court’s decisions, even when they might politically disagree.
Coming back to public support, this concept argues that even if individuals whole-heartedly disagree with individual decisions of the Court, this has historically failed to instigate any long-term effects on public support as an institution because the public still viewed these decisions as emanating from a legitimate institution. Drawing again on Bush v. Gore (2000), research found that “…because the Court enjoyed such a deep reservoir of good will, most Americans were predisposed to view the Court’s involvement as appropriate, and therefore dissatisfaction with the outcome did not poison attitudes towards the institution” (Gibson, Caldeira, and Spence 2003, p. 555). A study by Nicholson and Howard (2003) – also analyzing the aftermath of Gore – found that “…citizens’ perceptions of partisan decision making on the Court do not diminish support for the Court as an institution. Therefore, framing a judicial decision in this manner does not appear to produce a loss of diffuse support. Thus, broad claims of partisan decision making on the Court affect the standing of justices, but not the institution” (p. 692).
In short, variance in support for decisions versus support for the Court as an institution is arguably the result of perceptions of legitimacy. Even in the wake of divisive decisions, any long-term diminishing of the Court’s diffuse support – i.e., the 75% (or more) support – would ultimately fail to manifest.
However, recent trends represent a stark deviation from these historical expectations. As noted previously, while support for the Court was not historically volatile, the current environment has failed to demonstrate any ‘return to the mean.’ That is, net disapproval has overtaken net approval for nearly three years now (and continues to grow), rather than return to comfortable levels of support as in recent decades.
As with any active developments, scholars and observers have provided ample (and often conflicting) theoretical explanations. Part of it is undoubtedly the times we live in, where hyper-partisanship couples with access to information and the capacity to voice opinions through social media and other avenues that simply didn’t exist before. Again, the lion’s share of dissatisfaction has emerged from Democratic-leaning and Independent voters. However, the fact that these new trends have remained consistent for so long is a considerable development. It’s entirely reasonable to expect partisan divisions with respect to the decision-making of any political institution, but this doesn’t deter from the fact that – at least historically – we likely would have expected a ‘return to the mean’ by now.
Another element could be the increased politicization of the nomination process for appointments to the Supreme Court, which by default casts potential justices in a very public and political light – and for many represents the first instance we will actually be exposed to the nominees. It also can’t be ignored that the justices themselves are increasingly in the public spotlight, and unfortunately not usually in the best of circumstances.
It is difficult to assess that the Court’s decisions themselves – particularly those like Dobbs (2022), Bruen (2022), and others – can explain this shift, largely because such a robust set of research points to conclusion that politically-divisive decisions have historically failed to instigate any long-term, negative effects on institutional support. Alas, however, this could just as reasonably be changing. It is entirely possible that this long-held expectation is no longer the status quo. For the first time in my lifetime, public support for the Court is considerably volatile, and many of us in the social sciences will spend the coming years contending with whether these developments are an outlier or emblematic of real longitudinal change. So, stay tuned(?).
I would like to thank Dr. Adam Feldman for (yet again) allowing me to commandeer his blog for a brief moment.
Jake S. Truscott, PhD is a postdoctoral researcher at the Center for C-SPAN Scholarship & Engagement (Purdue University). His research centers on the intersection of judicial politics and computational methods. You can find his work at his website, as well as here on EmpiricalSCOTUS where he contributes to the data collection and analysis efforts for 2023 Term Statistics.
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