The Washington PostDemocracy Dies in Darkness

A troubling poll reinforces why Supreme Court justices are targeting critics

Conservatives Alito, Barrett and Thomas have taken on the court’s critics in recent weeks. And a new poll shows why it needs defending.

The Supreme Court is set to hear some blockbuster cases when the six conservative and three liberal justices open their new 9-month term on Oct. 4. (Video: Reuters)

As The Washington Post’s Robert Barnes wrote in recent days, the Supreme Court is embarking on “what could be an extraordinarily controversial term.” Key cases on religious rights, gun control, race and especially abortion rights await the court’s new 6-to-3 conservative majority, with the potential for major changes in store for our country.

And this has been prefaced by a trio of conservative justices combatively defending the court’s honor. Justice Amy Coney Barrett has criticized media coverage and said the court isn’t “a bunch of partisan hacks.” Justice Samuel A. Alito Jr. also targeted the media while going after critics of the court’s use of what is known as the “shadow docket” in cases such as the Texas abortion law. And Justice Clarence Thomas has warned against “destroying our institutions because they don’t give us what we want, when we want it.” (Liberal justice Stephen G. Breyer has also defended the court’s independence more generally.)

The interpretation favored by many on the left is that they know what might be coming down the pike, especially after a contentious decision on Texas’s abortion law, and they want to preempt it. The less conspiratorial take is that they can read polls just like all of us can.

And those polls suggest the court is indeed embarking on a potentially divisive term at a particularly fraught time.

The top-line number is that the court as an institution has hit a new low in the 21st century, with Gallup pegging its approval at just 40 percent. That’s after about 6 in 10 Americans approved of the court for much of the 2000s — even in the immediate aftermath of the divisiveness of its ruling in Bush v. Gore.

But arguably the more interesting poll came this week from the Annenberg Public Policy Center at the University of Pennsylvania.

The poll has for years asked people questions about the court, including a couple of rather drastic ideas for reforming the court: 1) Whether they would favor perhaps abolishing the court if it makes “a lot of rulings that most Americans disagreed with,” and 2) whether they would favor Congress restricting the court’s mandate on certain issues.

The results are not encouraging for our system of government. Fully 34 percent of people agree with the idea that “it might be better to do away with the Court altogether” if it issues too many rulings that Americans disagree with. And 38 percent agree with the idea that Congress could pass legislation restricting the court from ruling on specific topics and issues.

Poll questions such as these do tend to oversell people’s true commitment to these ideas. On both questions, for instance, supporters of these ideas were much more likely to say they “somewhat agree” with those ideas than they “strongly agree” with them.

But in both cases, opinion has swung significantly in favor of restricting and possibly even abolishing the court. The previous high for potentially abolishing the court (now at 34 percent) was 23 percent, in 2013, while the previous high for potentially restricting the court (now at 38 percent) was 28 percent, in 2018.

Just as interestingly: While it’s tempting to view this as mostly a symptom of liberal concern about the direction of the court, that’s not actually the case. Numbers shared with The Washington Post by the Annenberg Center show these are actually very bipartisan sentiments. While 33 percent of liberals entertain the idea of abolishing the court, so do 28 percent of conservatives. And while 37 percent of liberals agree that maybe Congress should restrict the court’s ability to rule in certain cases, so do 31 percent of conservatives.

In both cases, moderates were actually the most in favor of such drastic measures.

If anything, the message of this poll seems to be the continued breakdown of Americans’ faith in their many institutions — something that proceeded apace in the Trump administration — and that it’s a relatively bipartisan thing.

That doesn’t mean these ideas will be seriously considered by the American people or Congress; indeed, they are wholly impractical given the judiciary’s status as a coequal branch of government in the Constitution.

But it certainly reinforces just what the current malaise over our system of government has wrought and how ripe this particular branch might be for some real backlash — bigger even than the backlash we’ve seen in the aftermath of it allowing Texas’s ban on abortions after six weeks to move forward for now.

However one feels about how Barrett, Alito and Thomas enunciated their cases defending the court from its critics, there’s little doubt that the court needs defending. And that’s before the truly contentious term that lies ahead.

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