A recent Gallup poll showed President Biden’s approval rating falling 6 percentage points in one month, to 43 percent. But the Supreme Court fared worse, sliding to a record-low 40 percent from 49 percent in July and 58 percent a year earlier. Disapproval of the high court hit a new high of 53 percent. In a Marquette University Law School poll, public approval of the Supreme Court dropped to 49 percent in September from 60 percent in July.
The Supreme Court’s plummeting approval follows a handful of controversial “shadow docket” emergency rulings — without hearings or significant internal argument — overturning two Biden administration initiatives and, notably, allowing Texas’ effective abortion ban to take effect over strident dissent from four of the nine justices. And it comes “as the court embarks Oct. 4 on one of the most potentially divisive terms in years,” The Washington Post reports, with gun control, church-state separation, and the federal right to an abortion on the docket.
“Not since Bush v. Gore has the public perception of the court’s legitimacy seemed so seriously threatened,” Irv Gornstein, executive director of the Georgetown Supreme Court Institute, said last week. Three of the nine justices — GOP appointees Amy Coney Barrett and Clarence Thomas and Democratic appointee Stephen Breyer — have publicly insisted this month that the justices aren’t “partisan hacks,” as Barrett said at Senate Majority Leader Mitch McConnell’s University of Kentucky institute.
Barrett and Thomas, who will appear alongside McConnell next month at an event at the conservative Heritage Foundation, insist their decisions are based on “judicial philosophy” and not partisan leanings, and Breyer is promoting his book on the perils of seeing the Supreme Court as political. Some conservatives blame Congress or the media for making the Supreme Court appear increasingly partisan, while liberals point to the court’s actual rightward shift after McConnell’s hardball court-tilting machinations. Sen. Lisa Murkowski (R-Alaska) suggests “maybe it’s just that everything now has become more political.”
Regardless, the public is taking note. “It is all well and good for justices to tell the public that their decisions reflect their judicial philosophies, not their political affiliations,” Georgetown’s Gornstein said. “If the right side’s judicial philosophies always produce results favored by Republicans and the left side’s judicial philosophies always produce results favored by Democrats, there is little chance of persuading the public there is a difference between the two.”