The Supreme Court’s Looming Legitimacy Crisis

The New Republic, June 25, 2007

Real Clear Politics calculates President Bush’s average approval rating at 31 percent. Congress comes in even lower, at 25. But not every government institution is polling badly. In a recent Gallup poll, 51 percent of Americans approved of the performance of the Supreme Court of the United States.

Yes, the justices may be tackling hot-button issues like race in school placement and partial-birth abortion. Yes, conservatives may shriek about judicial activism and liberals may wring their hands that the sky is falling and that Roe v. Wade hangs by a thread. But the public isn’t buying any of it. The court has some serious Teflon.

Or not.

When Gallup’s pollsters ask a slightly different question, they get a dramatically different figure. Gallup this month released polling data on public confidence in American institutions, including the Supreme Court. Only 34 percent of those surveyed reported having “a great deal” or “quite a lot” of confidence in the court. This figure is the lowest since Gallup started tracking this particular metric back in 1973. The Court’s confidence rating has only once before dipped below 40 percent. Yet in the past few years, confidence in the Court has been in steep decline. If you take these numbers seriously, the Court has an incipient legitimacy crisis on its hands.

So which is it? Are Americans somehow losing confidence in their Court or cheering it on? My guess is that they’re doing both at the same time.

The Court’s high approval rating is certainly no aberration. In Gallup polling, it has fluctuated since 2000 from a high of 62 percent to an outlying and never-repeated low of 42 percent, most often falling somewhere between 50 and 60 percent. Gallup actually polled the Court’s approval twice in May. The first time, using the usual formulation, the Court garnered 51 percent approval; the second time, using a slightly different question, the figure was even higher, at 63 percent, including 55 percent of Democrats. By contrast, only 8 percent of Democrats approve of Bush’s performance.

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