The Supreme Court’s Alarming Public Approval Slump

A student visiting the U.S. Supreme Court once asked his guide, “Do the justices wear clothes?” Presumably, the unstated premise to the odd query was, “When not in their judicial robes.” The young visitor probably didn’t realize how significant the wardrobe justices wear while on the bench is. As Judge Jerome Frank wrote about judicial regalia, “The robe gives the impression of uniformity in the decisions of the priestly tribe. Says the uniform black garment to the public mind: Judges attain their wisdom from a single superhuman source; their individual attitudes must never have any effect on what they decide.” 

In the past year alone, however, an unprecedented opinion leak, followed by an unpopular abortion decision, as well as questions about Justice Clarence Thomas’s and his wife’s financial links to conservative individuals and interest groups, have battered the high court’s approval ratings.

In full disclosure, I must admit to venerating the Supreme Court ever since I made my first visit to the Marble Palace on Capitol Hill as a high school senior. A year-long constitutional history course in college, and a 1994-95 fellowship at the court cemented my loyalty to “the jewel in the crown” of the federal judiciary.   

My fealty doesn’t flow from whether I like particular justices, agree with all their decisions or lean in the same direction as the court’s majority on hot-button issues. Favorite justices I’ve known span the ideological spectrum, from Antonin Scalia on the right, to Lewis Powell and Sandra O’Connor in the center, to William Brennan and Ruth Ginsburg on the left. As a political scientist, I focus on government institutions and their roles in our democratic republic, not necessarily the people who populate them.

Alexander Hamilton wrote that the judiciary has no power “either over the sword [executing laws] or the purse [funding government].” “Judgment” alone is its only power. Hamilton stressed that judges’ “independence” and “integrity,” along with “knowledge” of legal precedents, would “guard the Constitution and the rights of individuals.”

Thus, the judicial oath of office requires federal jurists to “solemnly swear” that they “will administer justice without respect to persons, and do equal right to the poor and to the rich,” and “faithfully and impartially discharge and perform all the duties incumbent upon [them] under the Constitution and laws of the United States.” Fulfilling this oath preserves the power of Supreme Court judgments.

In addition, Hamilton would be pleased that merit usually has been among the top criteria that presidents consider in making judicial appointments. Most of the 121 members of the high court in its history have possessed demonstrably superb qualifications, and no justice has ever been removed from the bench via the impeachment process. Nearly one-third of justices have been members of the Phi Beta Kappa honor society. Two-thirds of Supreme Court justices appointed in the 20^th and 21^st centuries have earned their law degrees from top 25 law schools, and all but one of the current nine hold their law degrees from Harvard or Yale.

A frequently asked question I received as a Supreme Court fellow while briefing more than 3,000 foreign government officials and educators from more than 70 countries was, “How have U.S. Supreme Court justices remained above corruption? Our country’s judges often accept bribes.” Lest they think that American judges are perfect, I would relate the story of how Justice Abe Fortas resigned from the court in 1969 under investigation by the Justice Department for accepting $20,000 from a financier accused of insider trading. Then I would add that Fortas’s indiscretion was the exception to a longstanding judicial culture of avoiding financial improprieties.

This tradition, along with highly qualified justices, symbols of impartiality (blindfolded Lady Justice, equal scales, uniform black robes, a temple-like building), and isolation from media circuses by banning courtroom cameras, have all typically allowed the Supreme Court to register higher approval ratings than the branches of government that are perceived as more partisan.

Since 1972, when Gallup began asking Americans if they had a great deal or fair amount of confidence in the judicial branch headed by the Supreme Court, until recently, three-quarters of those polled tended to respond affirmatively. Not surprisingly, these numbers almost always outpaced the presidency and Congress. Although people have viewed the legislative and executive branches as mired in the muck of politics, for most of its history, Americans have viewed the Supreme Court as part of the constitutional system, a separate and purer element of the political cosmos.

More worrisome now for the court are Gallup polls asking if respondents approve or disapprove of the tribunal’s job performance. When first posed at the turn of the 21^st century, nearly two-thirds of Americans approved. Controversy surrounding the replacement of Scalia after his death in 2016, and the Republican-led Senate’s refusal to act on President Obama’s appointment of Merrick Garland to the seat, damaged the court’s image as above base politics and caused its approval to plummet to 42%. That nadir has been surpassed by a 40 percent approval rating in the aftermath of the 2022 decision overturning Roe v. Wade and the ugly debate over who leaked Justice Samuel Alito’s draft majority opinion in the Dobbs v. Jackson case.

In 1927, Charles Evan Hughes, who served on the Supreme Court first as an associate justice and then as its chief, commented that the tribunal had overcome conflicts “with its wounds healed, with its integrity universally recognized, with its ability giving it a rank second to none among the judicial tribunals of the world,” and with no government institution earning higher public confidence. He attributed this remarkable record “to the impartial manner in which the court addresses itself to its never-ending task, to the unsullied honor, the freedom from political entanglements, and the expertness of the judges who are bearing the heaviest burden of service and continuous intellectual work that our country knows.” 

The confluence of recent Supreme Court appointment controversies, an unpopular abortion ruling, as well as calls for justices to reveal all sources of income and gifts threatens to upend Hamilton’s and Hughes’s noble image of the court at the apex of our nation’s judiciary.

Barbara A. Perry, Ph.D., is the Gerald L. Baliles professor and director of Presidential Studies at the University of Virginia’s Miller Center. She is the author of “The Priestly Tribe: The Supreme Court’s Image in the American Mind.” Follow her @BarbaraPerryUVA.