Two of the biggest decisions of the U.S. Supreme Court's current term are yet to be announced. In one case, the court will decide the constitutionality of bans on same-sex marriage. In the other, the court will rule on the future of affirmative action programs in higher education. Both decisions are sure to provoke controversy. Invariably, some groups, public officials, and many in the public will dispute a decision and vow to overturn it.
Supposedly, none of this matters to the justices because they are expected to decide cases according to the Constitution and the law. However, in reality, it does matter. In fact, it matters a lot. Despite all the pomp and circumstance and tradition, the court ultimately relies on public opinion to hold power. In the Federalist papers, a set of essays written to urge public support for the Constitution, Alexander Hamilton explained that the Supreme Court has "neither force nor will, but merely judgment." In other words, the court's power rests on the public's deference and willingness to comply with its decisions. If the public does not believe the justices have exercised good judgment, then the court is powerless to get anyone to pay attention to it.
Indeed, there have been times when large segments of the public have refused to comply and the Supreme Court's power was diminished. For example, when the court declared slavery constitutional in 1857, the abolition movement was strengthened and the resulting Civil War eventually overturned the court's decision. In the wake of the Brown vs. Board of Education decision in 1954, which determined that school desegregation was unconstitutional, southern school districts took many years to comply with the decision.
The justices should be worried that just such a time may be coming again. In terms of public opinion, the court could well be in trouble. A recent CBS News/New York Times survey found that 44 percent of Americans approve of the way the Supreme Court is doing its job. Congress would love such a rating, but that is low for the court. By comparison, 59 percent approved of the court's job in 2001. When the Pew Research Center asked in a poll earlier this year whether Americans' views of the court were favorable or not, only a bare majority (52 percent) said they had a favorable view of the court. In 2006, that percentage was 60 percent.
Americans are losing confidence in the court. A Gallup survey in 2001 found that 50 percent of Americans said they had at least "quite a lot" of confidence in the Supreme Court; by 2012 that percentage had fallen to 41 percent. One reason for the lack of confidence may be a perception that the justices are less than impartial. A survey conducted last month by the Public Religion Research Institute found that 55 percent of Americans believed the justices are influenced "a lot" by their own political views. A similar survey by CBS News/New York Times last year found 76 percent of Americans agreeing that the justices "sometimes let their own personal or political views influence their decisions."
Perhaps that waning confidence has led to Americans concluding the court should be less independent. The Public Religion Research Institute survey also found that 45 percent of Americans felt the court should not only consider the legal issues of a case but also majority opinion as well. In other words, a large segment of Americans believe the court should listen to public opinion. And in the CBS News/New York Times survey, 60 percent of Americans agreed that "appointing Supreme Court justices for life is a bad thing because it gives them too much power."
The justices not only have decisions to make in the next few weeks, but they also have a bigger task over the coming months and years — restoring the public's confidence in their institution. How well they do that will determine how effectively the court can carry out its constitutional role as an arbiter of legal conflicts in a democratic society.
Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU. Email: [email protected]