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Citizens Do Not Agree that the Supreme Court Is Too Conservative

Both journalists and academics argue that the current Supreme Court is one of the most right wing courts in our history. Some even predict that Brett Kavanaugh’s nomination may cause a future constitutional crisis, because the Court will become so out of touch with the American people.

But the citizens do not agree with this elite assessment. After a term where the so-called right of the Court was in ascendance with Justice Kennedy joining the other Republican appointed justices in almost every contested decision, the approval rating of the Court is the highest in almost ten years. And the public was almost equally divided between those who said it was too conservative and those who said it was too liberal. The plurality of 44 percent said it was just about right.

This assessment is not a one-year anomaly. In the last eighteen years, taken as whole, the average percentage of people who have rated the Court as too liberal is very similar to that who have rated it as too conservative. It appears that popular view of the Court is substantially influenced by the major recent cases. Thus, after Bush v. Gore, the Court’s popularity fell among Democrats, and after the decision holding that the same-sex marriage was a constitutional right, it fell among Republicans.

So, what explains the disconnect between the popular and elite ideological assessment of the Court? One possibility is that the people are ignorant, not paying much attention to the Court. But the polls suggest they do change their opinion in rational ways on the basis of the decisions that are the most important to them.

Second, the people may take law more seriously than journalists and academics. Political scientists tend to code the decisions of the Justices no differently than if members of Congress had been voting on the issue. Thus, according the political science ratings a liberal should favor same-sex marriage, whether on the Court or in the legislature. But the people may better recognize that the constitutional and policy questions are different and may prefer a less activist court.  Many may not want the Court to dictate policies from the bench, even if they favor them as a political matter.

Third, and most obviously, the people take a different view from journalists and academics, because the latter groups are much more left-wing than the average citizen. Thus, a Court that appears centrist to the public would appear hidebound to most who write about the Court for a living. For most journalists and academics to get a Supreme Court that marches both with them and with the people, they need to elect a new people.

Reader Discussion

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on July 20, 2018 at 08:40:15 am

The people have to stop getting in the way of the media narrative. What do they think this is, a democracy or something?

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R. Werther
on July 20, 2018 at 10:19:19 am

I would paraphrase, extend and improve McGinnis' thesis as: 1) The locusts of the Left (meaning the media and the Democrats, because they're synonymous) ALWAYS get their underwear in a bunch when a Republican president is fated with making the next Court nomination; 2) at which times the Left's cicada chorus (its monotonous tymbaline song, as loud as 120 decibels) of journalists, politicians and academics is ALWAYS that that particular nominee must be rejected because he/she does not represent America's "mainstream values" (like prenatal baby-killing, socialized medicine, open borders and an unharnassed administrative state;) 3) yet, oddly, per McGinnis, "... taken as whole, the average percentage of people who have rated the Court as too liberal is very similar to that who have rated it as too conservative..." the most obvious cause of which is that "the people take a different view from journalists and academics, because the latter groups are much more left-wing than the average citizen. " (Tell me something I didn't know!)

I would add that the "average citizen" who is aware of the Supreme Court is like all the children of Lake Woebegone, he/she is well above average, at least in fearing the Court, and that's because they're eye-witness to history; they've seen what the Court has done, and they know that there's not a damn thing they can do about it.

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Pukka Luftmensch
on July 20, 2018 at 11:13:23 am

The US is clearly not a democracy as it has failed the ne plus ultra test of a democracy; the peaceful and orderly transfer of power following an election.

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EK
on July 20, 2018 at 11:21:19 am

Bingo: “Third, and most obviously, the people take a different view from journalists and academics, because the latter groups are much more left-wing than the average citizen. ”

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Mark Pulliam
on July 20, 2018 at 17:09:32 pm

"...they need to elect a new people."

Well they may not be able to "elect" a new people, but they sure as hell are attempting to create a new people as evidenced by the educational curricula in K-12 and university. In that sense, they may be said to be attempting to immanentize Calvin's *Elect*. And voting is neither required nor welcomed!

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Guttenburgs Press and Brewery
on July 21, 2018 at 10:14:03 am

True enough, there is a lot of 5th Monarchism and the associated dictatorship of the Saints about our appointed rulers. They would have felt right at home in the Bay Colony between 1680-92.

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EK
on July 24, 2018 at 16:19:59 pm

Yes, hence the sarcasm in my comment. Of course it wasn’t intended as a democracy, but that’s a whole different discussion.

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Richard Werther
on July 24, 2018 at 16:26:27 pm

Out with the Deplorables, in with the “Enlightened”. Of course we can’t create too many of the latter, because if everyone was “enlightened”, who would our self-anointed superiors be able to talk down to?

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Richard Werther

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.