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Sunday, February 5, 2023

Why some Supreme Court justices are supremely unpopular

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Most people who pay attention to approval ratings are aware that the Supreme Court’s ratings plummeted to unprecedented lows even before the landmark decision overturning Roe v. Wade. Unlike presidents, however, on whom pollsters have been collecting popularity figures since the Truman era, individual Supreme Court justices, who never face the electorate, have been spared such ratings of their favorability — until recently.

Traditionally, Americans have tended to pay little attention to specific members of the nation’s highest tribunal. One poll from the 1990s found that more Americans could name Hollywood’s
“Three Stooges” than could cite even one member of the Supreme Court. At the same time, the most recognized justice was its first woman, Sandra Day O’Connor; yet less than 40 percent of those polled could name her. More Americans could identify the judge who served on TV’s “The People’s Court” than could identify a justice on the Supreme Court.

Perhaps it was better to remain under the radar than to experience Justice Brett Kavanaugh’s  rating in a March 2022 Marquette University Law School poll that found him to be the most unpopular of the court’s current members, with only 21 percent viewing him favorably. Undoubtedly, his controversial nomination four years ago — during which he responded angrily to charges of sexual misconduct and alcohol abuse while a teenager, and uttered the unforgettable declaration, “I like beer!” — has not faded from Americans’ memories.

What causes Supreme Court justices to become lightning rods for public opinion, whether displayed in polls or other forms of expressed displeasure with their job performance?

In the modern era, starting with the New Deal Court, appointed by President Franklin Roosevelt, four types of events can lead to justices’ unpopularity: controversy surrounding their nominations; contentious judicial decisions rendered once on the bench; financial misdeeds; or questionable professional ethics, especially involving recusal choices.

Controversial nominations: Sen. Hugo L. Black had been confirmed as FDR’s first Supreme Court appointment in 1937 when news broke that he had once been a member of the Ku Klux Klan in his home state of Alabama. Wags observed that Black was exchanging his white robe for a black one in his move from the Senate across the street to the court’s new building. He went on the radio to explain his history and eventually became one of the staunchest civil libertarians on the Supreme Court.

On the other hand, sex scandals that envelope a nomination fight seem harder to overcome, as indicated by Kavanaugh’s and Justice Clarence Thomas’s ongoing unpopularity, 30 years after Anita Hill accused the latter of sexual harassment when they worked together before his nomination to the Supreme Court in 1991.

Contentious judicial decisions: Sometimes justices experience a smooth road to appointments but rile the public through their decisions. “Impeach Earl Warren” billboards sprouted throughout the South after the chief justice led a liberal revolution to bolster civil and criminal rights.

Justice William Brennan told me in a 1985 interview that his fellow Catholics knew that he attended Mass every Saturday evening at St. Matthew’s Cathedral in downtown Washington and protested there each week his vote to approve a federal right to abortion in 1973’s Roe v. Wade decision. “They have a right to free speech,” the justice told me as he smiled with a characteristically leprechaunish wink.

His colleague, Justice Harry Blackmun, took the public opposition to his writing the pro-abortion decision with less sanguinity. Just as Kavanaugh has had to face the arrest of a would-be assassin near his Maryland home, Blackmun’s apartment in Northern Virginia took incoming gunfire from an assailant in 1985. He told my fellow Supreme Court fellows a decade later, after he had retired from the bench, that he still received hate mail from Right to Life Americans who disagreed with his abortion decision. When I examined his papers at the Library of Congress in 2005, I discovered those missives that cursed him with “the most painful death from cancer,” for his perceived sin.

Financial misdeeds: President Lyndon Johnson’s attempted promotion of his friend Justice Abe Fortas to chief justice, replacing the retiring Earl Warren in 1968, was filibustered by conservative Democrats and Republicans who despised Fortas’s part in the Warren Court revolution and cited his ongoing association with LBJ. The GOP hoped that Richard Nixon would win that year’s presidential election and give him the chance to place a conservative in the court’s center chair. They got their wish when Nixon appointed Warren Burger to chief justice in 1969. Conservatives forced Fortas off the bench the same year when news broke that he had improperly accepted an annual retainer from a convicted financier.

Professional ethics: Justice Antonin Scalia skated through his 1986 nomination, after Justice William Rehnquist’s promotion by President Ronald Reagan to chief justice had drawn all the fire from Democrats that year over charges of racism. Once on the court, Scalia applied his conservative jurisprudence and refused to recuse himself in a case involving Vice President Dick Cheney, despite Scalia’s record of duck hunting with the Veep. A bête noire to liberals, Scalia’s lying in repose at the court after his sudden death in 2016 drew hundreds of admirers who waited hours in the February cold to pass by his coffin.

Thomas, unlike his colleague Kavanaugh, who eschews public comments about his 2018 nomination controversy, continues to speak publicly about how unfairly he believes he was treated in the Anita Hill controversy. In addition, Thomas refused to recuse himself in the 2022 case involving former President Trump’s communications about the Jan. 6, 2021, insurrection, despite the fact that his wife, Ginni, was a close ally of the 45th president.

The social media era, and 24/7 partisan coverage of Supreme Court controversies, have led to scathing attacks on justices, along with satirical depictions of them, that can spread much farther than editorial cartoons of previous controversies in the court’s history. The first episode of Stephen Colbert’s “The Late Show” after the overturning of Roe mocked the majority’s justices in an animated feature that referred to Kavanaugh’s beer-swilling. Colbert’s monologue that night portrayed the Dobbs v. Jackson opinion’s author, Justice Samuel Alito, naked, except for a pixelated fig leaf.

Sometimes public rejection of justices follows them to their graves. As Justice Brennan’s coffin was rolled up the aisle of St. Mathew’s at his 1997 funeral, attendees could hear anti-abortion protestors denouncing him from the street. Brennan would have been pleased that they were still exercising their First Amendment rights to free speech for which he had fought so hard as, in their minds, a supremely unpopular justice.

Barbara A. Perry is Presidential Studies director and Gerald L. Baliles Professor at the University of Virginia’s Miller Center. She was the 1994-95 Supreme Court Fellow. Follow her on Twitter @BarbaraPerryUVA.


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