The Washington Post

If everyone is unhappy with the Supreme Court, has it found the right spot?


Newt Gingrich says the Supreme Court is so far off base that its decisions would be practically non grata in his White House.

“I would instruct the national security official in a Gingrich administration to ignore the Supreme Court on issues of national security,” he told the conservatives gathering at the Values Voter Summit.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

At the opposite end of the political spectrum, the liberal Alliance for Justice last week excoriated the “Corporate Court” for its decisions upholding big business’ increasing use of arbitration to settle disputes with consumers.

“The Roberts Court has willfully undermined the fundamental principle that all Americans should have access to the courts, ensuring that all parties stand equal before the law,” the group said in releasing a report called Arbitration Activism: How the Corporate Court Helps Business Evade Our Civil Justice System.

And Gallup has announced that only 46 percent of Americans approve of the institution, a drop of 5 percentage points in the past year and 15 points in the past two years.

“The same forces that have caused Americans to lose trust in the presidency and Congress appear to be affecting the way Americans view the Supreme Court,” Gallup said in a report accompanying the poll. “In addition to the public’s lower level of trust in the judicial branch of the federal government today than in recent years, the Supreme Court’s approval ratings — like those of Congress and the president — are in the lower range historically.”

The court always receives more attention in election years, when presidential candidates joust over who is best to nominate future justices, and rulings are scrutinized though the lens of the current political debate.

But somewhat surprisingly for a court that is moving to the right and where Republican appointees hold sway, the heavy fire is coming from those who want the GOP nomination.

Texas Gov. Rick Perry devoted a chapter of his book “Fed Up!” to a rant about the high court: “Nine Unelected Judges Tell Us How to Live.”

“Any student of American history, or even the casual observer of the news,” Perry writes, knows that the justices look for a “single nugget around which the Court can marginally justify its policy choice to keep up the pretense of actually caring one iota about the Constitution in the first place.”

Reps. Michele Bachmann and Ron Paul, businessman Herman Cain and former Sen. Rick Santorum have all denounced the court and offered solutions, such as banning it from reviewing certain topics and allowing Congress to cast aside its rulings.

Mitt Romney and Jon Huntsman have stayed out of the fray.

James Gibson, a political scientist at Washington University in St. Louis who has extensively studied public perception of the Supreme Court, says such attacks “are useful only in the primaries, if at all.”

He said the public overwhelmingly supports the court as the final arbiter of the nation’s laws, despite what might be temporary dips in the polls.

“Anti-government sentiment has grown so strong that it’s poisoning all kinds of public issues,” Gibson said. “But what I find is that the kind of basic loyalty to the legitimacy of the institution has changed very little.”

In fact, he said, “public attitudes toward the Supreme Court are remarkably resistant to alteration by the decisions of the court.”

A forthcoming study based on polling completed in the summer, Gibson said, reinforces the notion that any dimunition of the court’s reputation is relative.

“First and foremost, the Supreme Court enjoys a great deal more confidence than does Congress and the federal government,” Gibson found.

And even controversial (Bush v. Gore) or unpopular ( Citizens United v. Federal Elections Commission) decisions have little impact on the public’s belief that the court is the place where such decisions should be made, Gibson said.

“Policy dissatisfaction with the court’s rulings does not necessarily or even ordinarily translate into threats to the legitimacy of the institution,” he said.

If those on the right and the left are unhappy, Gibson said, that might not be the worst place for the court to be.

The court is known for being ideologically split on many controversial issues, with four consistent conservatives, four reliable liberals, and Justice Anthony M. Kennedy casting a deciding vote.

That he most often votes with conservatives might make the court’s decisions reflective of the country’s prevailing political mood. And that he often gives the liberal side a significant victory provides something of a balance.

“Perhaps a court closely divided on ideology cannot produce the consistent decisional fuel needed to ignite a threat to the institution’s legitimacy,” Gibson said.


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Republicans debate tonight. The South Carolina GOP primary and the Nevada Democratic caucuses are next on Feb. 20. Get caught up on the race.
The Fix asks The State's political reporter where the most important region of the state is.
He says he could talk about Charleston, which represents a little bit of everything in the state has to offer from evangelicals to libertarians, and where Ted Cruz is raising more money than anywhere else. In a twist, Marco Rubio is drawing strong financial support from more socially conservative Upstate. That said, Donald Trump is bursting all the conventional wisdom in the state. So maybe the better answer to this question is, "Wherever Trump is."
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