In the first edition of Major Questions, I flagged the dramatic drop in public approval of the current Supreme Court as the most important indicator of the depth of the Court’s self-inflicted crisis:
Public support for the Court, as measured in multiple polls, is at or near an all-time low. Barely one in five Americans today has a great deal of confidence in the Court, down from more than half in 2000, according to an NBC News poll. On the flip side, almost 40 percent feel very little or no confidence, triple the percentage who felt that way a quarter-century ago.
I didn’t linger on this point at the time, but it deserves to be lingered on. One of the more common misconceptions about the Court is that it should pay no heed to the political winds, that the justices should be monkishly devoted to ascertaining this objective thing called “law.” It’s a nice-sounding notion that justices have encouraged over the years, as Justice John Paul Stevens did when he wrote in a 2002 case, “it is the business of judges to be indifferent to unpopularity.” To paraphrase Joe Biden, that’s some premium-grade malarkey.
In fact, the justices are well aware that the public’s confidence in them, and in the Court as an institution, matters immensely. The willingness of the people to submit to the Court’s rulings, even when they don’t agree with them, is central to the whole project of representative democracy. Political scientist James L. Gibson put it well: “Legitimacy is for losers.” It’s easy to accept the outcome when you win, but society survives only when the losers accept the outcome, too. And losers accept outcomes only when they believe the process that led to those outcomes is legitimate.
For much of American history, the Court enjoyed that legitimacy, which in turn helped to protect the justices from blowback in the aftermath of controversial rulings. Last time, I mentioned Bush v. Gore as a breaking point in the public perception of the Court. I believe that to be true, but it’s also true that within a year of that cataclysmically bad decision, public approval of the Court had rebounded more or less to where it was before.
This resilience is a measure of what political scientists call “diffuse support.” In his indispensable 2009 book on the relationship between public opinion and the Supreme Court, The Will of the People, constitutional law professor Barry Friedman of NYU School of Law distinguishes two types of support, diffuse and specific. The latter refers to public approval that is conditional on the results of given cases: If people like how the justices rule, they support the Court; if they don’t, they don’t. The former, meanwhile, is how institutional legitimacy is sustained — through diffuse support, the public gives the Court a degree of slack to rule at times against what a majority of Americans want. The response to Bush v. Gore is a prime example of this.
How did the Court pull that off? The thesis of Friedman’s book is that the conventional wisdom about the Court and politics is wrong: The justices have historically shored up support by issuing rulings that, sooner or later, line up with “the considered judgment of the American people.” The Court may not “follow th’ iliction returns,” in the famous words of the fictional Martin Dooley, but it rarely strays far from mainstream public opinion.
“The Court will get ahead of the American people on some issues [like the death penalty or school desegregation],” Friedman wrote. “On others, such as gay rights, it will lag behind. But over time . . . the Court and the public will come into basic alliance with each other. In the course of acting thus, the Supreme Court has made itself one of the most popular institutions in American democracy.”
Friedman went on to note that most of the Court’s rulings “meet with great public approval. And even when they do not, the public supports the Court’s right to decide the cases nonetheless.”
It’s striking to read those words today, isn’t it? Only 17 years later, they sound as though they’re from another space-time dimension. I called Friedman to ask him to reflect on the central themes of his book in light of the intervening years.
“I think what changed between the early 2000s and the present is that American politics pretty much went off the rails,” he told me. He meant this not so much in the “commander in chief is threatening to annihilate an entire civilization” sense, but in that it is no longer the case that our elected branches are translating the majority will of the American public into policy. Specifically, millions of Americans’ voices and votes are effectively erased by the combination of an increasingly unrepresentative Senate, an Electoral College that puts popular-vote losers in the White House, and turbocharged partisan gerrymanders that let politicians pick their voters.
This has profound implications for the justices, who have traditionally hewed to mainstream public opinion because they know that if they don’t, there will be consequences. That is, if they anger enough people, it will come back to bite them by way of the political branches, which in theory represent what most people want and which (as I’ve written about previously) have a great deal of power over the Court’s structure, its size, and even the kinds of cases it may hear. But what happens when there are no real threats to the Court’s power or autonomy?
“There are some members of the Court now who are entirely uncaring about public opinion, period,” Friedman told me. “This Court has no fear of retribution for any of its decisions. And they seem to know that.”
In short, the justices are ignoring their usual close relationship to public opinion because they can. By doing so, they are inflicting grave damage on the Court as an institution.
“When you look at those polling numbers, what they’re doing is spending diffuse support,” Friedman told me. In rare instances, that’s a necessary cost to incur. For example, the rulings in Brown v. Board of Education and the one-person-one-vote cases of the 1960s did not have broad public support at the time, but they are now widely considered among the greatest in the Court’s history.
In contrast, Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade in 2022 by a 6–3 vote, is unlikely ever to attain that status. More than 60 percent of Americans continue to support a woman’s right to obtain an abortion, a number that has remained constant for decades. Or take Trump v. United States, the 2024 case in which the Court decided, again by 6–3 and contrary to the position of an overwhelming majority of Americans, that former presidents are essentially immune from criminal prosecution.
The current right-wing majority on the Court has gone so far off the map that it has engendered something like the opposite of diffuse support: Even when the justices hand down broadly popular rulings, like in the Trump tariffs case or what is widely expected to be the result in the birthright citizenship case, a majority of the public continues to disapprove of them.
So what will it take to bring this Court into line with the American people? Friedman looked at historical instances where the Court drifted too far from the public and found that the most important factor in dragging it back was that any threat the justices faced had to be credible. Franklin Roosevelt’s Court-packing plan in the 1930s did not ultimately succeed, but it was credible enough to force the intransigent justices to reverse themselves and begin to uphold his New Deal legislation. In the mid-1950s, the Warren Court ruled a dozen times in a short period in favor of the civil liberties of communists, infuriating a broad swath of Cold War–era Americans living in fear of Russian infiltration. After legislation to strip the Court of jurisdiction over national security cases came within a few votes of getting through Congress, the Court suddenly started voting against the communists. Message received.
It’s like the scene in The Princess Bride where Wesley, Inigo Montoya, and Fezzik the Giant approach the castle on their quest to free Princess Buttercup. At the entrance, they encounter a guard. “Give us the gate key,” Wesley demands.
“I have no gate key,” the guard responds flatly.
Inigo Montoya turns to the giant. “Fezzik, tear his arms off.”
“Oh, you mean this gate key,” the guard replies.
In sum: The Supreme Court is the castle guard, Congress is Fezzik, and We the People are Inigo Montoya. We can threaten all kinds of good and necessary reforms, but if we want the Court to become aligned with the popular will again, those threats need to be credible. That means, as it always does in a representative democracy, electing the right people. People who want to keep the Supreme Court between the buoys of public opinion and, when it strays, to hold it accountable. The justices must understand that if they don’t change course, Congress and the president, acting on behalf of the people, will utilize their inherent constitutional powers to change it for them. Call it the Fezzik Principle.
What I’m Reading
In Politico, Peter S. Canellos (author of a superb biography of Justice John Marshall Harlan) digs into a nearly forgotten but enormously consequential moment in recent Supreme Court history: George W. Bush’s failed nomination of Harriet Miers in 2005, “a major turning point in the judicial wars” that “effectively ended any hope of compromise over the Supreme Court.”
On his blog Thinking About . . . , scholar of totalitarianism Timothy Snyder connects the dots between Trump’s war against Iran and his efforts to undermine the midterm elections here at home, laying out five plausible scenarios by which Trump could attempt another coup. His conclusion: “Trump is weak, but weakness only matters if it is treated as vulnerability and pushed towards defeat.”
Have a stiff drink or three before reading Antonia Hitchens’s hair-raising, stomach-dropping New Yorker profile of the ultra-ultra-right-wing young men intent on taking over the Republican Party from Trump, who make MAGA seem positively moderate. It’s terrifying. It’s also a tragic story of a country that has essentially abandoned the next generation. “The destiny of a nation is always with the youth,” one college student said. “We did everything right, and nothing worked out.”
In the New York Times opinion section, Steve Vladeck, one of the best and most careful Supreme Court analysts in the country (and author of the unmissable One First newsletter), warns us not to get too excited about the expected outcome in the birthright citizenship case. As he explains, during an earlier stage of this case last year, the Court “made it much harder for lower federal courts to block lawless executive action.”
“Does A.I. Need a Constitution?” Jill Lepore asks in another compelling New Yorker piece, this one about the struggle to impose meaningful guardrails (if not actual morals) around a technology that could soon overtake society. As one tech critic puts it, “I know people who work on A.I. risk who don’t expect their children to make it to high school.”
Why does the United States have such a uniquely bad partisan gerrymandering problem? Because we let self-interested politicians draw the maps, for starters. In this helpful explainer, The New York Times’ Christina Morales lists the main reasons most other modern democracies have no trouble drawing district lines in a fair way. One solution not mentioned: proportional representation!
Please forgive the unrelenting darkness this week; these are scary times. I’ll mix in some lighter pieces next time.
IMAGE: RGR Collection/Alamy
I’m okay with scary pieces. I just want to hear truth and factual information.
What about the ethics violations of Alito and Thomas? Where they receive large financial gifts from their billionaire donors and never report them? Can we impose ethics rules that have some power? Also how do we impose term limits?