by Mike Dorf
The lead sentence of a story in the NY Times last week began like this: "Just 44 percent of Americans approve of the job the Supreme Court is doing . . . ." Yet, an examination of the actual survey results shows a somewhat more complex picture. Here I'll note a few highlights:
1) That mere 44% does not entail 56% disapproval. Only 36% disapproved, with 20% expressing no opinion on the question. A 44/36 split is hardly overwhelming support, of course, but it's actually somewhat strong support when you consider two further factors:
a) Both Republican and Democratic politicians have been demonizing the Court for quite some time now in order to rally their respective bases. The Republicans decry "judicial activism" on, among other things, abortion, gay rights and the death penalty. (They even decry judicial restraint on takings.) Democrats go after the Court for activism on, among other things, campaign finance, gun rights, and states' rights. The message from each side is "The Court is doing or is about to be doing a bunch of terrible things so vote for politicians who will appoint Justices who will stop or prevent those terrible things" rather than "the Court is wonderful." Given that the Court comes up principally in this negative context, a 44/36 split is actually pretty good.
b) The country is in a pretty crappy mood overall. The survey reports poll results to the general-purpose right track/wrong track question going back over twenty years. Currently, there are twice as many people who think that we're on the wrong track (62%) than who think we're on the right track (31%). It would be surprising if people's general disposition towards the country did not affect their disposition towards all leadership institutions, including the Court. Unfortunately, there are no historical data reported for the Supreme Court's approval rating, but it would be interesting to test whether I'm right that there is a fairly strong correlation between the right track/wrong track results and Supreme Court approval ratings. If there were, then to get a sense of how people think about the Supreme Court in particular, one might want to normalize for ambient mood.
2) Americans appear to be legal realists, at least at the descriptive level. Survey respondents were asked the following question: "In general, do you think the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?" 76% said the Justices sometimes let their own personal or political views influence their decisions, with only 13% opting for legal analysis alone. So, how do we explain the fact that Supreme Court nominees typically adopt a posture of legal formalism in their confirmation proceedings, saying that the job involves only "calling balls and strikes" in the now-famous words of the current Chief Justice when he was a nominee? If the American people see through this charade, why do nominees of both parties pretend that they are formalists?
I think the answer may be that Americans' prescriptive views do not match their descriptive views. Let's distinguish between strong legal realism and weak legal realism. Strong legal realism says that the sorts of legal questions that reach the Supreme Court usually have no unique correct answer. The law contains gaps and ambiguities, which is why the case got to the Supreme Court in the first place. A strong legal realist would say that Supreme Court Justices often have no choice but to be influenced by personal or political views because "legal analysis" alone cannot resolve the case. By contrast, a weak legal realist would say that the formal legal materials usually do provide a unique best answer but that the Justices do not always select that best answer because they improperly permit their personal or political views to override their legal analysis.
We can reconcile the formalist stance of Supreme Court nominees with Americans' legal realism if we assume that Americans are weak legal realists, not strong ones. They observe the Justices being influenced by personal and political views but don't like it. Thus, they want to hear from Supreme Court nominees that those nominees will follow the law like good formalists--even though they expect to be disappointed most of the time.
3) The survey also asked about the Patient Protection and Affordable Care Act, but in a way that I don't think provides as much information as it might have. The question asked was this: "The U.S. Supreme Court is expected to come out with a decision about the 2010 health care law in June. Which of the following would you like to see the Supreme Court do? 1. Keep the entire health care law in place, 2. Overturn the part of the law that requires nearly all Americans to obtain health insurance if they don’t have it, but keep much of the law in place, or 3. Overturn the entire health care law."
The problem with that question is that it doesn't ask people what they think the Court ought to do as a matter of what the Constitution requires. There are plenty of laws that one might think are wrongheaded but not unconstitutional. Nonetheless, if someone is asked about her druthers as a citizen what she would like to see, she probably would say that she would like to see the Supreme Court strike down such wrongheaded laws. Now, maybe if a respondent were very sophisticated, she might say that she wouldn't like to see the Supreme Court striking down bad-but-not-unconstitutional laws, because she might also have preferences about the role of the Court. But I doubt that many respondents are that sophisticated. The question assumes that respondents are completely unsophisticated, however, treating what people would like to see as a complete proxy for their constitutional views. There might be some people out there who distinguish what they'd like to see the Court do from what they think they're entitled to see the Court do as a matter of constitutional doctrine.
All that said, I agree with the analysis I have seen (e.g., Ilya Somin on Volokh Conspiracy) indicating that the Court is unlikely to pay a public opinion price if it invalidates part of the health care law, because a majority of Americans apparently would like to see that. That's not a legal justification for such a ruling, of course, but weak and strong legal realists alike would recognize that legal justifications do not necessarily decide cases.