We have observed, as have other conservative Supreme Court watchers, that Chief Justice John Roberts went a bizarre route (finding it a “tax” despite the administration’s pronouncement that it was no such thing) to save Obamacare from extinction because he feared the long-term reputation of the court would be harmed by overturning a monumental piece of legislation. The chief justice should have stuck to judging and left the PR to others.
A Pew poll finds the court’s approval “close to an all-time low”:
52% view the court favorably, while 31% view it unfavorably. Those ratings have changed only modestly since last July, shortly after the court’s ruling to uphold most of the Affordable Care Act.
Republicans’ views of the court, which tumbled 18 points following the court’s ruling on the health care law, have rebounded somewhat in the current survey. Nearly half of Republicans (47%) have a favorable opinion of the Supreme Court, up from 38% last July, but still lower than the 56% who viewed the court positively prior to its decision on the health care law. By contrast, Democrats’ impressions of the court have slipped since last July, from 64% to 56%..
It is impossible to know, of course, whether Roberts’s transparent gamesmanship is responsible for the downturn; causation is hard to prove. Nevertheless, this suggests that the Roberts decision sure didn’t endear the country to the court. In fact, chasing elusive public opinion is foolish for justices. Upholding an unpopular law through legal gymnastics is likely to annoy just about everyone.
It is true that the media and advocates for various groups have been treating the justices as a political body for some time, telling us what “conservatives” and “liberals” on the court think. (In fact, their judicial styles — originalism vs. “living constitution” — don’t exactly line up with what we think of as “conservative” or “liberal” in the partisan arena.) The president, by haranguing the court after the Citizens United case and before it ruled in the Obamacare case only heightened partisan attitudes toward the court. Conservative pols who do that sort of thing are tut-tutted by figures such as former Supreme Court justice Sandra Day O’Connor, who was silent when the president treated the court like a pack of errant children.
The gay marriage cases, like the Obamacare case, is at the center of a major social controversy. It might be too much to ask for the media to stop making political appeals to the court divorced from legal principles; the justices themselves to decide the two cases without a finger in the wind; and both sides to accept the decision with restraint. But that is, in fact, the formula that just might see the confidence in the court rise again.