June 8, 2012

NYT/CBS poll shows low approval rating of the Supreme Court... but why?

A poll of 976 adults shows 44% approve of "the way the Supreme Court is handling its job," 36% disapprove, and 20% judiciously opine that they don't know. When asked if "the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?," 76% give the answer that is obviously prompted by the question: They sometimes let their own personal or political views influence their decisions.

You really have to be naive or to restate the question in your head before answering to resist the "sometimes" and say legal analysis only, but 13% did. 7% had the wits to quibble with or qualify the question and say that some of the Justices do or "it depends." The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in the question and jumped on the obvious "yes").

Here's the analysis in the NYT by Adam Liptak and Allison Kopicki, who stress that the approval level is as low as it's been in a quarter century. But why is approval on the decline? Is it because of the new Obama appointees and what's going on with the liberal wing of the Court? Or is it John Roberts and the coterie of conservatives that the NYT would like to push back? The poll questions do not attempt to extract this particularity.

They don't ask, for example: 1. Do you think that the Supreme Court should strike down statutes that exceed the Framers idea of limited, enumerated powers?, 2. Do you think that the Court should define constitutional rights to accord with evolving notions of equality and individual autonomy?, 3. Can you name a Supreme Court Justice who is accurately applying legal analysis without regard to his or her own personal or political views?, 4. Can you name a Supreme Court Justice who has allowed his or her personal or political views to influence decisionmaking?

Different answers to questions like that could take us in quite different directions. But Liptak and Kopecki seem to assume that the conservatives are the problem:
The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions....
But:
On the highest-profile issue now facing the court, the poll found that more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law when it rules, probably this month. There was scant difference in the court’s approval rating between supporters and opponents of the law.

The court’s tepid approval ratings crossed ideological lines and policy agendas. Liberals and conservatives both registered about 40 percent approval rates. Forty-three percent of people who hoped the court would strike down the health care law approved of its work, but so did 41 percent of those who favored keeping the law.
You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases. That combination of attitudes is perfectly sensible. In addition, it's natural for human beings to perceive that the judges who aren't doing it right are the ones who are reaching the outcomes that they don't like. That's how the mind works. It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it. I expect comments that will demonstrate exactly the thing that I just said was natural for human beings to perceive.

56 comments:

Fen said...

who stress that the approval level is as low as it's been in a quarter century.

Total bullshit. Approval rating of SCOTUS cannot be accurately tracked and polled. 90% of the respondents don't even know what cases SCOTUS ruled on that year.

This is all about "shaping the battlefield" of public opinion re the upcoming ObamaCare decision.

traditionalguy said...

No one expects blind justice. But the hope that a Judge will settle our disputes without fear or favoritism springs eternal.

This analysis Sounds like it is a targeted piece wrtten to tell Kennedy that he can leave the 4% and join the 76% if he wants peer support in this country. No one expects anything more than flexible get alongers anyway.

Now get with the plan, Kennedy!

X said...

I think RBG sometimes lets legal analysis influence her decision, but I wouldn't swear on it.

John said...

I would guess the disapproval rate is driven by the perception that the court is being driven by politics rather than adherence to the constitution. As people lose the sense that court decisions are grounded in something understood as fundamental as opposed to political whim and/or political correctness there is/would be a disconnect with expectations (either left leaning or right leaning)

Quayle said...

The decline... could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions

Well, yes, it could reflect that.

What geniuses.

What insight.

What clarity.

And these people get paid for stuff like this.

This is all about "shaping the battlefield" of public opinion re the upcoming ObamaCare decision.

And it is about serving your dwindling but more focused customer base exactly what they want to read.

chuck said...

The Left wants what the Left wants and the Supreme Court is only useful when it is compliant. If it isn't sufficiently supine, the Left will attempt to discredit it. Hence the attacks on the court, the Constitution, and all other impediments to left wing tyranny.

Jay said...

In this era of failed big government policies, I'm not surprised a highly visible government institution is seen as not that popular.

Krumhorn said...

It may be banal to say, but when a judge announces up front that she wants to employ the "richness of her experience" to reach a "better conclusion", ConLaw professors had better start forming exam questions on "wise Latina" jurisprudence.

Don't get me started on the bar essays on the fine legal thinking of political hacks of the Kagan School.

-Krumhorn

X said...

If Citizens United had been about banning Farenheit 9/11, RBG would have voted the other way.

NotquiteunBuckley said...

"In addition, it's natural for human beings to perceive that the judges who are don't it right are the ones who are reaching the outcomes that they don't like. That's how the mind works."

The judges who aren't doing it right? The judges who are doing it right? The judges who are don't do it right? The judges who are don't get it right?

I am not getting it.

Hagar said...

Madame thinks "legal analysis" is a strictly neutral - not to say neutered - process? And that when applied to a constitution hammered out between some of the biggest and most opinionated egos in the country dealing with the most contentious issues of the day?

kcom said...

"The Left wants what the Left wants and the Supreme Court is only useful when it is compliant. If it isn't sufficiently supine, the Left will attempt to discredit it. Hence the attacks on the court, the Constitution, and all other impediments to left wing tyranny."

That's it in a nutshell.

Chip S. said...

It's so banal I'm a little embarrassed to put it down in plain words.

And yet, I expect you to argue with me about it.


I enjoy a good argument as much as the next guy, but I can't find any basis for disagreeing.

You're right. It is banal.

Chip S. said...

Too bad the NYT rarely rises to the level of banality.

Lyssa said...

I agree with Fen - people just don't know enough about the court to accurately rate it, and they don't know enough about their own ignorance to realize it. Even those who write about it are often shockingly ignorant (see the many mis-statements regarding Citizens United). Therefore, these sorts of polls are meaningless.

The Drill SGT said...

What Chuck and Krum said, pretty much.

The Left is worse than the Right at complaining about politization of the SCOTUS.

Many conservatives complained about the Warren Court inventing rights from the Penumbra. However, not that many conservatives grouse about Defendant rights issues like Miranda, because the Right can see that the Leftish majority was making a decision based on a consistent and honest interpretation of the BoR.

The Left lives in a cocoon. As we saw on Obamacare. They don't hear the logical case for unconstitutionality, so they think that the Roberts SCOTUS "makes $hit up"

Similiarly, nobody on the Right feels that Kagan or Sotomayer consdered the Obamacare arguments.

Bob Ellison said...

Yes, I will argue with you about it.

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases.

This is naive. The SCOTUS is a bunch of humans, and some of them are not that bright. They decided Roe, after all! and even those who don't like Roe invoke stare decisis to avoid picking away at it!

As I said, not that bright. Just saying "but they're the supreme court! they're lawyers and all!" is not enough. They might be stupid.

jimbino said...

My problem with SCOTUS is a recurring dream I have of a conversation with Thomas Jefferson about his idea of instituting a Supreme Court of the USA:

"What I propose is a Court made up exclusively of rich lawyers--3 Jews and 6 Catholics--never mind that none of the Catholics have repudiated a religion that claims the authoritarian right to dictate right and wrong and the absolute power to excommunicate them. Hey, nothing's as good as a bad Catholic, right?

"Never mind that Jews are represented all out of proportion to their numbers in the general populace. Somehow, Jews, no matter how elite their upbringing, have the capacity to empathize with the poorest Black citizen.

"Of course, they should all be drawn from the undergraduate pool of English, History, Philosophy and Political Science majors. The last thing we need is someone with a physics or math background who can think like a scientist. Hell, we don't want to be using cheap coal, oil or real lightbulbs forever."

Fen said...

after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election

More bullshit. It was the 7-2 decision that ended the fouled recounts and determined the 2000 election, ie. Gore's recount scheme was not legal.

Paddy O said...

The Court is driven by politics, but I don't think this is explicitly so. They have the politics they have because of their broader reasoning--just like the rest of us, only much more legally learned.

The trouble is, and I don't know the solution to this, is that the Court has entirely co-opted the amendment process. There is literally no reason to amend the Constitution anymore because the Court has determined for itself that it has the power to basically amend the Constitution for the country through its interpretations.

We don't talk about convening an amendment process, we talk about electing the right politicians who will put the judges in place who we know, beforehand, will rule in the ways we find, mostly, favorable to our causes.

Meaning that the trouble with the Court is that they're not as much arbiters of the Constitution as super-citizens who get special votes on issues of national importance.

Michelle Dulak Thomson said...

What notquiteunBuckley said. Ann, there's something seriously wrong in that sentence, and I don't really know what you were trying to say. Could you eyeball that and fix it?

Rusty said...

You know what I like in a judge? Supreme court or otherwise?
I'll tell ya what I like in a judge.
I like a judge that stays bought. None of this wishy washy shit. I paid the vig on his juice. I bought the hookers. I paid the bar tab. Goddamn it! I want the ruling I paid for!

Rusty said...

Ann. you assume some sort of constitutional literacy here. The constitution is barely taught in school anymore. I think, in my daughters high school class, the Bill of Rights was given two class periods.
There is no use asking questions about the supreme court and its rulings if the people you ask have no idea what the supreme courts duties are.

Bob Ellison said...

Rusty said, "Ann. you assume some sort of constitutional literacy here."

Are we all idiots? Are we unfit to judge who should govern?

Rob said...

What's rich is that after the NYT and others on the left have been engaged in a months-long campaign to delegitimize the Court, they look for explanations as to why the Court is delegitimized. I suppose it's understandable that the reporters haven't been reading the Times's op-ed pages; nobody else does either.

edutcher said...

Battlespace prep.

The Short Shortstop spilled the beans to Choom he loses on ZeroCare.

As for a poll of "adults" (about a quarter of whom actually vote), how many could name 2 Justices?

Rusty said...

Bob Ellison said...
Rusty said, "Ann. you assume some sort of constitutional literacy here."

Are we all idiots? Are we unfit to judge who should govern?


"here" was figurative. I write like I talk.

But since you bring it up..............
Keep in mind half the population is on the left hand side of the bell curve.
And they vote democrat.

Bob Ellison said...

jimbino, well said.

I just want a justice who looks like me. Just like me! My identical twin, though I have none. Maybe I could be cloned.

Paddy O said...

To add to my previous comment, I don't think this is an issue in which conservatives are worse or better than liberals. The issue is with the judiciary in general, which has taken on the role of super-citizens, rather than restrained arbiters of the established law.

Of course, the Supreme Court justices have to follow along because so many of the other courts decide this way.

If we're going to have unelected super-citizens, it might as well be the highest court in the land.

The question is who gets to decide the basic elements of our society? We all like the idea of civil rights, but how are those parsed? Do the people speak for the people, do the elected representatives speak for the people, or do appointed people speak for themselves to the people? Right now, the latter approach is the default way to decide national issues. Reason or rhetoric? Nah. Take it to the courts!

Only the courts aren't really anything special, just people with a great capacity to rationalize their pre-established positions with lots of footnotes.

Bob Ellison said...

Keep in mind half the population is on the left hand side of the bell curve.
And they vote democrat.


So...they're unfit to vote?

cassandra lite said...

Isn't the whole reason that prospective justices are subjected to a senatorial inquisition is that everyone assumes all judges, at all levels, are influenced by their personal opinions?

whoresoftheinternet said...

Amazing how the NYT takes the poll just before the S.C. announces its decision on NaziCare, ahem, Obamacare.

It's like they're trying to intimidate the court in some way...

Hey, Justice Kennedy, your evil Republican politics and hints that you might find NaziCare unconstitutional are making the court look bad. If you overturn Obama care, there will be full scale riots against you. Be fair and honest and integ-riful and such and always up hold every left-wing action---especially our beloved Nazicare. Or else.

William said...

How many feel that the current NYT's editorial and reporting staff decide on what's worthy of coverage based on objective analysis without regard to their own personal or political views, or do you think that they sometimes let their own pesonal or political views influence such decisions?......Actually over 40% is fairly high compared to Congress which polls lower than the Third Reich. Anyway the point of the article (which I haven't read) is clearly not to examine why the Court polls low but to drive the polls lower. It is patently manipulative, and I'm sure that a certain fraction of Times' readers resent the manipulation. I used to be a faithful Times' reader, but at a certain point one wearies of it.

Pastafarian said...

Isn't there a concept of "judicial philosophy" anymore?

It used to be that you'd support a nominee to the Supreme Court because, for example, he was an originalist; and so you knew that he'd decide the constitutionality of laws based on what the constitution actually says, and when there's ambiguity, on what supporting historical documentation indicates the original authors of the constitution meant with their words.

Is that concept now obsolete?

If not, then I reject your "both sides do it" argument, Althouse. I don't favor justices simply because they would make decisions that align with my politics.

On some issues, an originalist's decisions would align well with my politics -- Roe v. Wade, gun rights. On others, not so much. I'm not in favor of drug legalization, or even leaving it up to the states, from a political standpoint: I think it would lead to a generation of burned-out pot-heads. But constitutionally, drug laws seem indefensible to me.

So I'm perfectly willing to take the good with the bad. Find me a liberal whose test for fitness for the court is based on judicial philosophy without regard for outcome.

This "both sides do it" middle-of-the-road fence-straddling pose is pure bullshit.

Bob Ellison said...

It's like they're trying to intimidate the court in some way...

Hey, Supreme Court. Nice rep you got there. Much better than the Congress and the Presidency. Almost up there with the military. Nice rep you got there. Shame if anything were to happen to it.

tim in vermont said...

These polls always seem designed to wallpaper over the elephant in the room.

Terry said...

I read the Ledbetter V Goodyear majority & minority opinions.
Alito, writing for the majority, (and whose decision I liked) Made a straightforward argument that the law should be enforced as written. This is the law, etc, etc. Ginsberg, writing for the minority, made an argument based on a progressive view. It wasn't really convoluted, but it cited as precedent incrementally progressive decisions made re: equal pay by a series of liberal courts.
Alito spoke for what was said in the law passed by congress. Ginsberg spoke for progress, as defined by liberals.

Chuck said...

Dear Ann,

As a lawyer myself, and as one who very much repects you as a law professor and someone with whom I am probably a political kindred spirit (though by no means a clone); I say to you and/or ask of you...

Has there ever been a Supreme Court decision in our lives (I am a few years younger than you) that has been mor poorly reported by the media, and more widely misunderstood by the public, than Citizens United v. FEC?

I am not talking about mere political disagreements, or the routine feeling stoked by Democrats that Justices Scalia and Thomas are caricature monsters. No; I am talking about the public's near-complete failure to understand what the details and meaning of the decision were.

I really think that Lawrence v. Texas, and Roe v. Wade (to name two contentious nominees for any "Most Misunderstood" list of SCOTUS cases) don't come close to the sort of basic failure on the part of the public to grasp what the basic ruling was.

People think that Citizens United produced SuperPACs. (No; it was SpeechNow.org v. FEC that reached that conclusion, citing Citizens United.)

People think that Citiznes United allowed unlimited "donations" to candidates. (It didn't.)

People think that Citizens United allowed corporate donations to candidates. (It didn't.)

People think that Citizens United created a new rule that allows secret donations to candidates. (In fact, the Kennedy opinion invited Congress to make new disclosure rules for federal campaigns.)

Et cetera, et cetera.

I'd be grateful to hear your thoughts on this as a legal academic on the front lines of teaching cases like Citizens United.

Michael K said...

"As for a poll of "adults" (about a quarter of whom actually vote), how many could name 2 Justices?"

Too true. Before the 2004 election, radio host Hugh Hewitt, a conlaw professor, had a caller who blathered on about how she was an independent and voted "for the individual." Hewitt asked her if she would answer a couple of questions and she agreed to do so. He asked her who the vice-president was. She didn't know.

Fox News does these man-in-the street interviews from time to time and people can't identify people like Nixon and Roosevelt. That these people are voting is frightening.

MaggotAtBroad&Wall said...

In 2010, when Pew asked poll respondents who is the Chief Justice of the U.S. Supreme Court, 53% of the people polled said some fellow named "Don't Know" is the Chief Justice.

Only 28% knew the correct answer, John Roberts.

Amazingly, 8% of the people polled said a man who had been dead for 17 years and who had NEVER been the Chief Justice, Thurgood Marshall, was the current Chief Justice.

Finally, 4% of the geniuses polled said a guy who has never served on the Supreme Court, Senator Harry Reid, is the Chief Justice.

So, 72% of the people polled could not correctly name who the Chief Justice is. Why on earth would anybody take seriously what they think about the Supreme Court?

My guess is the willfully uninformed simply associate the Supreme Court with government, and people aren't happy with government generally.

http://www.washingtonpost.com/blogs/the-fix/post/what-people-dont-know-about-the-supreme-court--in-one-chart/2012/04/18/gIQA5w6gQT_blog.html

Rockeye said...

@Fen: what percentage of Americans can define the acronym SCOTUS? Asking the average (i.e. uninformed) person about the validity of the workings of almost any court provides as much valid advice as a USA Today poll asking whether Hugo Chavez should pursue chemotherapy or stick with radiation therapy to treat his cancer.

Henry said...

It is certainly ironic to have the news media "analyzing" some other institution's unpopularity.

How about this: All institutional bodies are losing approval. Some because they're run by feckless hacks who spend their days banging the drum of petty hatred. Some because they have to march in the same parade.

Personally I have a higher opinion of the Supreme Court than I did in the past. It seems to me that all of its current members are of extraordinary intelligence and temperament. By all accounts they do their job in civil and respectful fashion. I'm glad there's a conservative majority, but I have far less concern about getting some body of perfect opinions than I once did.

CWJ said...

Again, I repeat my low opinion of polling in general. Serious opinion or market research is hard enough and generally knows its limits. Polling is nearly always opinion pushing and/or propaganda pretending to be scientific.

That said, I want to second Paddy O's comments. The supreme court should be saying things like no congress try again, or if you don't like where the constitution leads, then amend it. Too often it appears to legislate from the bench rather than referee.

As soon as someone discovered a penumbra around the constitution, much if not all was lost.

Scott M said...

Serious opinion or market research is hard enough and generally knows its limits. Polling is nearly always opinion pushing and/or propaganda pretending to be scientific.

It's gimmicky and the sample size is always small, but I like what Frank Luntz does with the dials where you track between two poles as you listen/view something. Interesting, if not scientific.

Smilin' Jack said...

You can hope for the outcome that you like politically, but still think that the Court ought to do its work in accordance with a purely legal methodology, and you should worry that the Justices are imposing their own political and policy notions as they decide cases.

Only law professors care about the mumbo-jumbo...er, purely legal methodology...that they use to decide cases. Sensible people only care about the outcome.

KJE said...

One problem the Supreme Court faces is that it's media outlets are confined to written decision and what the media reports of it.

Every other member of Congress, and the Executive Branch has the ability to walk infront of a camera or microphone and advocate for their position.

The Courts don't do this. The public is only going to believe what they say and hear. TL;DR will be the response to most written decisions.

That puts the spin back on Congress and the President.

wordsmith said...

"Has there ever been a Supreme Court decision in our lives ... that has been more poorly reported by the media, and more widely misunderstood by the public, than Citizens United v. FEC?"

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).

Kathy said...

Awesome comments here today - especially Jimbino and Chuck (I wish I could say their posting #s):

Ann -the most important thing you said is "The restrained "don't know" crowd dwindles to 4% at this point (which I think suggests that they took advantage of the "sometimes" prompt in and jumped on the obvious "yes")"

Push polling - a word like SOMETIMES - predicts poll outcomes. All political operatives know this well.

And even more important - your careful word "the don't know crowd" umbrellas probably 98% of our American population who has no idea who is on the Supreme Court or what they do.

So sad that we dicthed a Civics requirement for graduation from high school in the 1980's in Wisconsin in lieu of unfunded mandates requiring sex education classes instead.

Chuck said...

To wordsmith:

Your nomination of the Lily Ledbetter case as one that was widely misunderstood is a really excellent suggestion.

Having nominated Ledbetter, you presumably know all about it. The reason that I would still contend that Citizens United is more widely misunderstood is that the Ledbetter case turned, or should have turned, on a technicality. Lily Ledbetter's lawyer in the trial court never made a timely claim that might well have gotten her some relief, under the Equal Pay Act.

Here is a terrific writeup of how the press mangled the Ledbetter story:

http://www.freedomaction.net/profiles/blogs/the-tampa-tribune-corrects

stan said...

Why is it so hard for lefties at the Times to remember that Bush v. Gore was 7-2?

Rusty said...

Bob Ellison said...
Keep in mind half the population is on the left hand side of the bell curve.
And they vote democrat.

So...they're unfit to vote?



Pretty much. Yeah.

wordsmith said...

Chuck: That is an excellent write-up by Hans Bader. Lily Ledbetter testified that she knew about the alleged pay discrimination in 1992, at least six years before she filed suit. You can see the source documents here (JA 233):
http://www.scotusblog.com/archives/LedbetterJoinAppendix.pdf

Simon said...

Right. Contrary to what some on the left believe, it doesn't follow that just because the political conservatives of the day were unhappy with the crimpro revolution that today's legalists would have ruled differently. See, e.g., Roger Roots, The Originalist Case for the Fourth Amendment Exclusionary Rule, 45 Goz. L. Rev. 1 (2010).

Simon said...

Sorry, the above was a reply to Sarge's comment that "[m]any conservatives complained about the Warren Court inventing rights from the Penumbra. However, not that many conservatives grouse about Defendant rights issues like Miranda, because the Right can see that the Leftish majority was making a decision based on a consistent and honest interpretation of the BoR."

SukieTawdry said...

Gee, and here I was thinking just the other day how pleased I've been with recent Court decisions and the unanimity the justices have shown on basic constitutional principles.

frank said...

After con law 1 & 2 + fed juris i reasoned it all depended on the quality of Nina Totenberg's [sp] BJ's.