There Go the Judges

The U.S. Supreme Court plays a bigger role in American democracy than any top court plays in any democracy in the world—and as it opens session on its current term, the Court finds itself in an unusual situation: Public trust in the institution has now dropped below 50 percent. According to a recent Gallup poll, only 47 percent of Americans now say they have either “a great deal” or “a fair amount” of trust in the judicial branch. That’s a decline of 20 points in only two years. Political tensions over the Court aren’t new, but they’ve grown especially acute after its recent decision in Dobbs v. Jackson Women’s Health Organization, in which the majority opinion overturned 1973’s Roe v. Wade and almost 50 years of precedent—declaring that the U.S. Constitution doesn’t confer the right to an abortion.

Now, with many Republicans celebrating the Dobbs decision as a moral and political victory, leading Democratic politicians have expressed support for packing the Court with additional justices in order to move the balance away from its current conservative majority; progressive activists have protested outside the private homes of justices; and the federal government recently installed protective fencing in front of the Court itself. All of this around an institution Americans have long tended to consider above the partisan fray—“to call balls and strikes,” in the words of the chief justice, John Roberts, “and not to pitch or bat.” So, what’s happening?

James Wallner is a senior fellow at the R Street Institute and the author of three books on the U.S. Senate. To Wallner, the deeper sources of the challenges facing the Court aren’t in the judiciary itself but rather in America’s legislative branch. Over recent decades, Wallner notes, analysts have come to see America’s executive branch as becoming more and more powerful—and accordingly, more and more politicized. Those analysts have tended to see the primary cause behind expanding executive authority as lying with a Congress that’s increasingly allowed the executive to take on traditionally congressional responsibilities—such as crafting budgetary priorities and approving military conflicts—to the president.

Now, Wallner says, Congress is increasingly enabling the same dynamic with the Supreme Court—effectively politicizing it in the process, transforming public perceptions of the Court into a body that makes laws rather than one that interprets them.

Eric Pfeiffer: How unprecedented is the steep decline we’re seeing with American public trust in the U.S. Supreme Court?

James Wallner: It’s certainly quite severe. But back in the mid-1970s, public trust in the Court was around 45 percent. It peaked at about 56 percent in the mid-1980s and has hovered around 50 percent for the past 25 years. So while trust has declined recently, that decline isn’t without precedent.