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The Supreme Court's Approval Ratings and the Legitimacy of Judicial Review:

In one of the posts in my debate over judicial review with Orin Kerr, I made the point that the Supreme Court's approval ratings are consistently much higher than those of Congress; I also noted that majority public opinion is strongly supportive of the Court's role in invalidating congressional legislation that the justices believe to be unconstitutional. To the extent that the legitimacy of judicial review depends on public approval, that is important evidence in favor of judicial power.

However, University of San Diego law professor Michael Rappaport responds to part of my argument by suggesting that the Court's relatively high approval ratings may be due to the fact that it gets less public criticism than do other branches of government. As he puts it, "criticism of the Court before the public is generally muted by comparison with criticism of politicians." There is something to this point, but not as much as Michael suggests. The Supreme Court has gotten a great deal of public criticism in recent decades. Since at least 1968, conservatives have routinely made the Court's real and imagined liberal "judicial activism" an electoral issue. In more recent years, the Democrats have often attacked it for supposed conservative activism. Judicial nominations have of course been a highly controversial issue since at least the 1980s.

In one sense, the attacks on the Court have been even more thoroughgoing than those on Congress and the presidency. Many conservative and some liberals have argued that the Court's power as such is illegitimate and should be reduced. By contrast, attacks on Congress and the president usually focus on the supposed sins of incumbents, with less effort to claim that the powers of the institution as such should be reduced (the recent debate over George W. Bush's use of executive power may be a partial exception).

Michael is right to point out that the justices are rarely subjected to the kinds of personal attacks as individuals that elected officials face. However, public hostility to an institution can often arise even if the voters know little or nothing about the individuals who work there. Witness Congress' extremely low approval ratings, despite the fact that most Americans can't name their own congressman and know little or nothing about Nancy Pelosi and other top congressional leaders.

To reiterate, I don't believe that strong judicial review of statutes can be justified merely on the grounds that it is popular with the public. Neither do I believe that judicial review becomes illegitimate if the laws it invalidates have strong public support. However, for those who do believe that the legitimacy of judicial review depends at least in large part on the degree to which it has majoritarian support, the Court's very high approval ratings relative to those of the president and Congress are not easy to dismiss. As I argued in my earlier post, they undercut arguments such as Orin's, which hold that judicial review must be strictly limited because legislative enactments have a degree of popular "consent" that the courts lack.

RodundaBall (mail):
the Court's relatively high approval ratings may be due to the fact that it gets less public criticism than do other branches of government.

What makes 'em have high ratings is, the no-camera rule means no one can see 'em. They're not human, they're ideal, Olympian. The people who are justices don't have high ratings, the ideal of justices has high ratings.

The smartest thing strict constructionists could do would be to hire ugly actors to dress up and read through the oral arguments transcripts, put them on youtube, let people see them as the tendentious ideologues they are.

There, I said it and I feel better.
1.27.2008 4:56pm
Cornellian (mail):
As he puts it, "criticism of the Court before the public is generally muted by comparison with criticism of politicians."

On the other hand you could argue that criticism of the Supreme Court counts for more than equivalent criticism of Congress or the President, because the latter two branches have an unlimited ability to "return fire" in response to that criticism, whereas the Supreme Court does not.
1.27.2008 5:32pm
Gilbert (mail):
Wouldn't the best solution be to require a supermajority to overturn statutes? I am more Bryer and less Scalia in my beliefs about constitutional interpretation, but I just love this idea. I see so many benefits and very few, if any, downsides.
1.27.2008 7:12pm
Avatar (mail):
The argument presented in the post seems rather evident, really.

People don't spend a lot of time following individual politicians, good or bad, and so it'd be hard to find people who could talk about, say, Pelosi's fund-raising history or Boucher's legislative history, off the top of their head. But that doesn't mean they don't hear reports about that sort of thing, and that said reports aren't internalized; so in essence, every time you hear about a corrupt congressman, the reputation of Congress as a whole takes a hit.

The Supreme Court is hardly free from criticism, but that criticism is highly academic in nature. It's difficult for someone not interested in the topic to internalize, say, a report about the Kelo decision. Or any constitutional issue, for that matter...

At the same time, compared to the executive and legislative branches, there's almost a total lack of personal attacks on justices for people to internalize. You'll run into a few liberals who think Scalia is some kind of baby-eating devil, and a few people who haven't heard anything about Thomas since his confirmation hearings and think he's some sort of closet rapist, but that's basically it. There's not the relentless drumbeat of discoveries of corruption and personal indiscretions that color our opinions on the other branches of government.

Of course, candidates for the Supreme Court are screened rather more thoroughly than candidates for most public offices, and they're generally more or less old folks, and they DON'T go on to other careers, and they don't need to fund-raise to run for office... so the demands that tend to drive politicians to corruption are rather muted, and they're just plumb not horny enough to pester the help, unless there's some clerking stories I just haven't heard.
1.27.2008 7:58pm
unhyphenatedconservative (mail):
It's not just that the Court faces less criticism, it is that criticism of the Court is generally reacted to as an attack on the Court and judicial independence. So the perceived legitimacy of the Court is enhanced by perceived illegitimacy of the critics.
1.27.2008 9:39pm
Doc Rampage (mail) (www):
they undercut arguments such as Orin's, which hold that judicial review must be strictly limited because legislative enactments have a degree of popular "consent" that the courts lack.
I don't see why. Consent in a democracy is registered in the voting booth, not over the phone to a pollster. There are many examples of popular kings and dictators throughout history. Did their popularity make their governments in some sense democratic?

Let us start voting for Supreme Court justices every four years so that voters actually have to know about their views and actions like we do congress people and presidents. Let's see how popular they are after a few rounds of that.
1.28.2008 12:31am