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Public Opinion and the Supreme Court

by Timothy Troutner, published
Steve Petteway / Collection of the Supreme Court of the United States

The Supreme Court is the forgotten branch of our government. Our nation celebrates the democratic process that yields our presidents and congressmen. Every four years, the media machine builds to a near fever pitch in the months before the presidential election. There is no escaping the phenomenon that is the presidency, and almost everyone has a strong opinion on the election.

In schools, children are taught about the legislative branch. We hear daily stories of the bickering in the House and Senate. While almost no one has a high opinion of Congress, most know the basics. Not so with the Supreme Court. America's knowledge of the Supreme Court comes from two sources: landmark cases and John Grisham. Many Americans have a dim vision of black-robed men and women sitting in a room pronouncing obscure judgments.

Roe v. Wade and Brown v. Board of Education may make it into the history books, but the day to day activity of the Supreme Court does not concern the average American. Perhaps it is for this reason that the Court has been generally well respected. Thankfully for our system of government, the highest court has generally been above the condemnation of public opinion. The recent health care decision is part of a new reversal of the trend. Americans are doubting the wisdom of the nine justices.  According to the New York Times:

“The results of this and other recent polls call into question two pieces of conventional wisdom,” said Lee Epstein, who teaches law and political science at the University of Southern California. "One is that the court’s approval rating has been stable over the years, the other is that it has been consistently higher than that of the other branches of government," Professor Epstein said.

Chief Justice John Roberts is a particular target for criticism. His controversial decision, the swing vote in the health care case, saved "Obamacare" from being gutted by the Court. Perhaps the reason the Supreme Court has been above the fray is that most of its decisions don't concern the average citizen, who thinks they are simply deciding quarrels over words and technicalities, or at worst, deciding the fate of big corporations. If this were ever the case, it is not now. This generation's issues will change the relationship between the Supreme Court and the people.

First, awareness and opinion of the Court itself will change. The "Obamacare" case is just one of many landmark issues to face our generation. In the age of technology, the Constitution faces new threats. Copyright and intellectual property have become the battlefield between multinational corporations, with individuals caught up in the middle. Who owns what? Can a plant be owned? What about bacteria? The issues surrounding genetically modified foods are many and volatile. Surveillance in the computer age has changed the capability of government to spy on citizens. When does privacy end? What is safe from the government?

Because these are hot-button issues that affect every American, this generation will become more aware of the Supreme Court, with individual voters firmly entrenched on one side of the issue. Independent voters can join one side of the political fight or another, but most likely they will disapprove of the Court altogether. When voters see that the Court is not above partisan squabbles, they will lose the romantic view of the Supreme Court as an unbiased arbiter. We are seeing this even now, as the number of people with no opinion of the Supreme Court is falling. In a Gallup poll conducted after the ruling on the Affordable Care Act (Obamacare), the percentage of the populace with no opinion on the job performance of the Supreme Court fell from 14 to 9 percent, compared with 2005. The number with a negative view is on the rise. The New York Times reports:

"Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views."

This trend will most likely continue. The Supreme Court has the final say when the other branches disagree with states, individuals, or among themselves. This  is happening more and more in our partisan political environment.

Second, individual justices will receive attention. The Court is fairly evenly divided, and the justice who becomes the swing vote will bear the brunt of both criticism and adulation. John Roberts has just received tremendous media attention for his recent decision on the health care law, and he has vaulted into prominence on the national stage. This is not a positive trend. The more the public interacts with the Court, the more difficult it is to come to unbiased conclusions. Power-hungry justices could make bizarre or unexpected rulings just to gain attention. According to the Gallup poll, John Roberts has experienced a remarkable swing in public opinion:

"Americans' opinions of U.S. Supreme Court Chief Justice John Roberts are now much more negative than they were seven years ago, with the most recent reading coming soon after he joined the four Democratic appointees on the court to uphold the U.S. healthcare law. Republicans' favorable rating of Roberts is down 40 percentage points from 2005, while Democrats' is up 19."

The Republican view of Roberts switched from "one of us" to public enemy number one (or two, after Obama.) This change reflects a trend that could continue with other landmark cases. If it is possible, Supreme Court nominations may become more partisan than ever, as more is at stake.

Finally, the spirit of the American people will be tested. The previous two predictions relied on assumptions about America. They ignored the growing power of the executive branch. It is possible that as the executive branch usurps more power, the Supreme Court may become less important, yielding in matters of national security to the opinion of the executive. While the people may not be able to stop this trend, the independent voter can at least become aware of it, and speak out against it.

Secondly, the analysis assumed that the people have not yet reached the point of apathy. While the last few decades do not speak favorably, it is still possible for the people to realize the importance of the Supreme Court. The two-party system and the media have succeeded in creating a huge group of people who no longer care about where our nation is going. No matter what your opinion of the Supreme Court, the next few decades will be an exciting time in federal jurisprudence. Ultimately, the course of the nation will not be in the hands of nine men and women in black robes, nor will the battle be won at the ballot box.

Change can only occur as each individual becomes aware of the issues, and works to achieve change among their friends and acquaintances. Grassroots change can shift public opinion, and public opinion will show whether our nation will awake from the slumber imposed by the media and the two-party system.

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