The Supreme Court’s Declining Status

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23 Responses

  1. Brett Bellmore says:

    Eh, they can ‘destroy themselves’ by issuing rulings upholding parts of the Constitution liberals find inconvenient, and getting subjected to hostile PR campaigns, or destroy themselves by deciding to not do their job anymore. I guess they figure that the former route, they at least keep their self respect.

    What the heck, they’re still a lot more popular than Congress.

  2. Joe says:

    Eh, Brett is answering an OP partially about a ruling that John McCain opposes with a selective comment about “liberals” and the opposition is not merely based on “inconvenience” but substantive opposition to what “upholding” the Constitution means. Whatever.

  3. Gosh, I can’t imagine why the Surpreme Farce would be so unpopular with the citizenry. Let me count just a few of the ways: Kelo; Citizen’s United; Oh! and let’s not forget Clarence Thomas, the former Monsanto atty refusing to recuse himself from the GMO food cases involving Monsanto. The Supreme 9 are a bunch of overpaid slugs every bit as beholden to their corporate criminal friends as Congre$$.

  4. TJ says:

    Valid point, but unhelpful, no? Yes we can avoid ideological conflict (and the perception of ideological conflict) by having the conservatives just become liberal. Same if the liberals would just became conservative.

  5. Orin Kerr says:

    I don’t find the post persuasive. Gallup has been polling the approval rating of the U.S. Supreme Court since August 2000, before Bush v. Gore, and the Court’s approval ratings seem to bounce between 40% and 60% in that time in ways that don’t seem (at least to me) to match Professor Orentlicher’s hypothesis as to what is driving public opinion.

    http://www.gallup.com/poll/4732/Supreme-Court.aspx

  6. Joe says:

    Though I think Scalia’s comments in recent oral arguments have been lazy and unfortunate at times, I think the OP is unproven as a whole — a few cases are cited & one can substantively disagree on their merits.

    There are certain behaviors, including certain trollish comments, that aggravate the situation.

  7. Brett Bellmore says:

    Joe, I expect you’re perfectly aware that the self defined “maverick” McCain is, on the subject of campaign censorship, an outlier among Republicans, and right at home among liberals. The topic is largely responsible for the respect he was accorded on the left as long as he could be relied upon to lend his vote to make Democratic measures nominally ‘bipartisan’.

    For all that the ACLU, a staunchly liberal organization, recognizes the constitutional infirmities of these laws, a mania for campaign censorship is mostly confined to the left in this country, with the exception of a few oddballs hungry for the adulation of a media bizarrely convinced they won’t be subject to it in the end.

    “Yet by joining the majorities in Bush v. Gore and Citizens United, and tipping his hand at oral argument on the validity of the individual mandate to purchase health care, Scalia has only reinforced public skepticism of the Court’s role in resolving constitutional controversies.”

    In other words, for daring to not give the left everything they want, the Court has been subjected to an adverse PR campaign by Democrats, who hope to delegitimize the Court sufficiently that they can defy it. But the Court stubbornly remains more popular and respected than the legislature enacting these laws it’s striking down.

  8. Joe says:

    Brett, “liberals” aren’t the only one who disagreed with the rulings cited & McCain is far from along among those who do not really consider themselves “liberals” in supporting that case in particular. The “everything they want” per a citation of two controversial cases further digs the hyperbole hole.

  9. Joe says:

    edit: that is “NOT” supporting the case.

    “an adverse PR campaign by Democrats, who hope to delegitimize the Court sufficiently that they can defy it”

    The same “Dems” who when Bush v. Gore actually was handed down from Gore on down firmly accepting the legitimacy of the ruling, even if they strongly opposed the reasoning?

    Disagreement = delegitimize?

    The numbers suggest a bipartisan discontent, including a belief each justice, not just the justices they agree with, are ruling by partisanship, not law. It is unclear how to read the numbers, but Republicans for years have attacked the courts, including some saying judges should be impeached for handing down the “wrong” rulings.

  10. Brett Bellmore says:

    “Brett, “liberals” aren’t the only one who disagreed with the rulings cited & McCain is far from along among those who do not really consider themselves “liberals” in supporting that case in particular.”

    You really, seriously, want to deny a correlation that strong, on the basis of a few outliers? On that basis, you can’t say there are any policies or positions AT ALL associated with one party in particular!

    The CU decision was the one major ACLU victory they don’t like to talk about, and nearly ended up backing down on, because of hordes of pissed off conservatives?

    Republicans were outraged at Bush v Gore?

    Conservatives are going to be upset with the Court if it strikes down Obamacare?

    Get serious. David gave a list of cases where the Court upset liberals. And omitted any, like Kelo, or, God forbid, Roe v Wade, where it was primarily conservatives pissed off. This is because there’s been a serious push on, especially since you guys were shocked by the ACA oral arguments, to preemptively delegitmize the Court if it dares to issue any rulings you don’t like. Really, it’s been going on for years. But it’s gotten really intense in the last few months.

  11. Joe says:

    John McCain is far from the only non-liberal who supports (I’ll be careful) “campaign finance reform” that Citizens United threatens. The ACLU not wanting to upset various supporters because liberals generally don’t like it is duly noted, but this doesn’t change this fact.

    Going back to what I said, you argued that Dems were trying to “delegitmize” the Court so they could “defy it.” In response, I cited the ruling and noted that they did just the opposite. Gore right away said that the Supreme Court ruled and he was bound by it. Some on the left grumbled, but the “Democrats” as a whole didn’t do anything. They even didn’t let a challenge be heard in Congress.

    The OP cited three cases. Someone else can cite three others from a different point of view. Scalia DID embarrass himself at the oral argument; even Roberts was annoyed at one point. The other two are not “any ruling” but ones that received lots of controversy (Bush v. Gore criticized by the likes of the New Republic, which also criticized Roe v. Wade) — keep up the hyperbole, including how criticism with reasoning (maybe you don’t think much of it) explaining why they find the arguments shoddy (as Republicans do on their issues) is an attempt to “delegetimize” it and without any actually evidence that they will “defy it.”

    Meanwhile, leading Republicans in Congress (not some angry people on blogs) talked about impeaching judges who didn’t rule the right way. Yes, it has been “going on for years.”

  12. Joe says:

    As to “outliers” on CU,

    http://influencealley.nationaljournal.com/2012/01/poll-most-voters-oppose-citize.php

    “The poll found that 62 percent of all voters oppose the Supreme Court’s Citizens United decision (the two-year anniversary of which is tomorrow) and 46 percent of voters strongly oppose it.”

    The public not supporting Supreme Court rulings doesn’t tell me much, nor does it suggest the opinion was wrong, though tellingly certain people who like to cite polls on the PPACA don’t talk about this data. Data that suggests McCain is not some “outlier” among non-Democrats.

    But, I don’t think selective citation means the people will try to “delegitimize” the Court, though Randy Barnett et. al. going on and on about a few law professor types discussing why it should rule in a certain way is (dark music) sadly going to the job, since if the USSC upholds the law, people (who knows why) will think Roberts and/or Kennedy was “pressured” somehow is far from totally benign.

  13. David Orentlicher says:

    I think there may be some overreading of my post. I simply made the fairly modest point that the recent decline in public approval has been “reinforced” by Justice Scalia despite his concerns about maintaining the Court’s legitimacy.

    No doubt there are other influences at work, but I wasn’t trying to provide a complete explanation for the Court’s approval ratings. As for mentioning other cases like Kelo or Roe, they are not cases in which Scalia joined the majority.

    A fairer critique of my post would be to identify a more liberal justice who has cited preservation of the Court’s legitimacy to justify one opinion and then ignored concerns about the Court’s legitimacy in other opinions.

  14. Joe says:

    I appreciate the previous reply but wonder if the quote and cases are totally apt.

    Scalia believes abortion and “right to die” cases are not matters the Constitution says anything about. I disagree, but understand the sentiment.

    But, it clearly does say things about election law, free speech and the contours of the Commerce Clause. Wrong or not on the merits (I’m less critical of CU than some on my side), I’m not sure why joining the CU majority is a selective application of the principles of the quotation.

  15. frankcross says:

    I don’t think there’s much here. I suspect that opinions about the Supreme Court track opinions about government generally. When people are unhappy economically, they get grumpy. I suspect the better measure is the relative score of the Court against other government institutions, such as Congress

  16. Orin Kerr says:

    David writes: “A fairer critique of my post would be to identify a more liberal justice who has cited preservation of the Court’s legitimacy to justify one opinion and then ignored concerns about the Court’s legitimacy in other opinions.”

    Doesn’t every Justice do that?

    • David Orentlicher says:

      Perhaps there are justices on the left who have contributed to public skepticism of the Court in the way Scalia has. But given the Court’s rightward tilt, we shouldn’t be surprised if judicial overreaching has occurred more to the right than the left in recent years, any more than we would expect to see more judicial overreaching to the left when the Court has a leftward tilt.

  17. This is very nice and informative article. I like this kind of article. Thanks writer to post such a good article.

  18. Critics of the Court – or particular court decisions – have long held out the threat that the popularity and legitimacy of the institution will collapse if it refuses to rule as they would have it rule. It is a standard and, increasingly, tiresome exercise. And, through all of the disaster predictions, public confidence in the Court remains high (compared to other national political institutions). Check out the approval ratings for Congress, for example. Furthermore, the notion that the average member of the public has any clue about the Citizen’s United case or a real “opinion” about its entirely debatable possible impact is silly.

  19. Brett Bellmore says:

    It is, however, a demonstration of the ability of the media to generate the appearance of a consensus when they deeply care about something the public is mostly indifferent to. That people who don’t really care about an issue tend to adopt whatever view they think is the consensus view is well known in polling. The media take advantage of this to create first a simulated consensus, and then report on the public’s chameleon like adaptation to the simulation.

    The interesting question is why the mainstream media are so enthusiastic about supporting what is, ultimately, a drive for censorship. Can they really be foolish enough to think it will never get around to them? Or do they, faced with their impending buggy whip manufacturer status, simply not care about the long run anymore?

  20. Joe says:

    “ultimately, a drive for censorship”

    yes, disclaimer laws, disclosure laws, limiting corporations to spending money to things that aren’t ultra vires to what they were given certain special privileges to do, etc. is merely a “drive for censorship” ditto the concern to avoid plutocracy and the rest. Just a drive for censorship.

  21. Orin Kerr says:

    David writes:

    ******
    Perhaps there are justices on the left who have contributed to public skepticism of the Court in the way Scalia has. But given the Court’s rightward tilt, we shouldn’t be surprised if judicial overreaching has occurred more to the right than the left in recent years, any more than we would expect to see more judicial overreaching to the left when the Court has a leftward tilt.
    ******

    Perhaps I am just missing something, but I think the problem is that you haven’t provided any evidence linking any decision of the Supreme Court with any public skepticism. Rather, it seems that you are just asserting that such a causal link exists; you are then asserting that the causal link is due to particular Justices and asserting that it is due to particular cases (and Justices acting in particular ways that you describe as “overreaching”.) I guess I’m skeptical that the causal link you claim actually exists.

  22. Joe says:

    Michael Dorf (Dorf on Law) cites an op-ed he wrote that is in today’s NY Daily News suggesting the poll numbers suggest the public might be more realistic about how the USSC operates.

    He also suggests “disapprove” can be misleading.