The Gap Between the Supreme Court and Most Americans’ Views Is Growing
A new study tracks the high court’s rapid move away from the middle.
With the emergence of its conservative supermajority, the Supreme Court has turned sharply to the right. | Cory Hall
In early May, a leaked draft of an opinion by Supreme Court Justice Samuel Alito showed that the high court is poised to strike down the landmark 1973 Roe v. Wade decision. The anticipated ruling has been hailed as a victory for conservatives even as it breaks with the views of the majority of Americans who believe abortion should remain legal.
The news of Roe’s likely reversal illustrates two key findings of a new study about the Supreme Court’s political leaning: Not only has the court’s majority shifted dramatically rightward in the past two years, its stances are now significantly more conservative than most Americans’. As Neil Malhotra of Stanford Graduate School of Business, Stephen Jessee of the University of Texas, and Maya Sen of the Harvard Kennedy School of Government document in a new paper published in Proceedings of the National Academy of Sciences, the ideological gap between the court and the public has grown quickly — and many Americans remain unaware of this change.
Malhotra and his colleagues find that 2021 was a turning point for the court. According to their data, the court occupied the political middle ground in the 2010s, when its ideological position was closely aligned with the average American’s. Following the emergence of a six-justice conservative supermajority during the presidency of Donald Trump, the court turned sharply to the right. By 2021, its ideological position corresponded almost exactly with the average Republican’s.
The researchers also found that many Americans, particularly Democrats, underestimate how conservative the court has become. That misunderstanding could affect support for institutional changes to the court, such as adding justices or introducing term limits.
A Matter of Opinions
The study takes a unique approach to measuring the court’s political leanings by looking beyond individual justices’ decisions. “That method is not as good at looking at change over time because the issues before the court are not randomly selected,” Malhotra says. Lawyers usually petition the court if they think they have a good chance of winning, which skews the types of cases on its docket.
Rather than comparing different courts with different justices, Malhotra and his coauthors used public opinion as a yardstick against which to measure the court’s ideological composition. Taking surveys from 2010, 2020, and 2021 in which Americans were asked about policy issues before the Supreme Court, the researchers compared those answers with actual court rulings. “That’s what’s unique about this study,” Malhotra says. “We can compare the public and the court directly.”
This methodology allowed the researchers to see how rapidly the court has shifted politically. Typically, the court doesn’t change very quickly, Malhotra says. For example, President Joe Biden recently appointed Ketanji Brown Jackson to take Stephen Breyer’s seat, yet that choice won’t alter the court drastically because a liberal is replacing another liberal.
Yet the last few years have seen an unusual amount of turnover on the court, leaving it with six judges appointed by Republican presidents and three picked by Democrats. This imbalance has substantially moved the court’s ideological midpoint rightward. In 2010, Anthony Kennedy was the court’s most moderate justice. In 2020, it was Chief Justice John Roberts, who was more conservative than Kennedy. By 2021, Brett Kavanaugh, who is more conservative than Roberts, was at the court’s statistical center, which is further right than the average American’s opinions.
Whether the court should reflect the views of the electorate is an open question, and one Malhotra prefers not to answer. “I’m a political scientist — I study how politics actually work,” he says. “The court, whether you want it to be or not, is a political institution. It’s embedded in the political processes of the United States.”
While the justices are not elected officials, their authority rests on the public’s confidence in them. Malhotra references Alexander Hamilton’s description of the court as having neither “the sword or the purse” wielded, respectively, by the president and Congress. “It basically just has judgment,” Malhotra says. “Whether the public agrees with its decisions is something that can potentially contribute to whether people view it as legitimate.”
Additionally, people are less likely to want to reform the court if they believe in its legitimacy as an institution. Court-packing and term limits have been recently proposed as ways to diminish conservatives’ sway over the court, but Democrats have been resistant to these interventions. Malhotra thinks this is because many Democrats don’t fully understand just how conservative the court has become.
“The left has been just kind of out to lunch on the court, frankly,” he says. “The Republicans have a better understanding that the court is a political institution.” That could change if controversial rulings or reversals of precedent jolt the public’s perceptions of the court’s political agenda.
Malhotra hopes that the kind of data he and his colleagues have compiled can help Americans understand exactly where the court stands now and where it is headed. “We don’t have a view on what should happen,” he says. “We’re just trying to provide data that could be of value to people as they try to understand how the world works.”
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