Four years ago, the Supreme Court of the United States was, by far, the most-trusted institution in Washington.
Now, as the high court nears the end of another potentially seismic term, public trust in the court has eroded.
Americans’ trust in the court dropped 20 points from 2020 to 2022, according to Gallup, to a record-low 47%. For the first time, a plurality of Americans (42%) viewed the court as “too conservative.”
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As the U.S. Supreme Court prepares to hear a case Thursday on whether presidents have absolute immunity, trust in the high court remains near historic lows. But there is a way forward.
Partisanship has been a principal driver of the loss of trust. Since late 2020, the high court has had a 6-3 conservative supermajority. It has delivered several high-profile decisions favoring conservative policies, including overturning the right to abortion, ending affirmative action in college admissions, and expanding gun rights. While Republican confidence in the court has remained steady, trust has cratered among Democrats and some independents.
But the court is also taking, or being forced by lower courts to take, a steady diet of high-profile, politically charged cases. Meanwhile, the overall size of its docket is the smallest it’s been since the Civil War. As a result, the controversial cases take up even more oxygen. And the justices themselves, with ethics scandals and their public rhetoric, have at times given the impression that distrust is merited.
Cases this term could further break, or buttress, trust in the court. On Thursday, former President Donald Trump will argue – to a high court that includes three justices he appointed – that he should have immunity from criminal prosecution for conduct while he was in office.
There is a clear path toward rebuilding trust, however. The Supreme Court had been the most-trusted government institution for decades because it acted with humility and avoided dramatically reshaping the law, legal experts say. The justices also modeled civility and how to work across ideological divides. With another potentially seismic term concluding in the next three months, the court has an opportunity to rise above the partisan turbulence of Washington again.
Security works on the steps of the Supreme Court June 30, 2023.
“We’ve seen this real partisan trust gap emerge,” says Matthew Levendusky, a political scientist at the University of Pennsylvania who has studied public perception of the court.
“If it seems like it’s just another conservative institution, then that will further erode trust. But if they can combat that perception, that will help to go a long way toward restoring at least some of that,” he adds.
Charting the decline in trust
Trust in the high court bottomed out in 2022 after it overturned Roe v. Wade. According to numerous surveys, however, the decline began before that.
In December 2021, the Supreme Court ruled that a Texas law effectively outlawing abortion could stay in effect, even though it conflicted with Roe, which was then still the law. The justices did not overturn the constitutional right to abortion until June 2022, in a 6-3 decision along ideological lines.
Such partisan rulings have become a feature of recent terms. The same month it overturned Roe, the conservative supermajority also expanded gun rights, weakened the federal government’s regulatory power, and reshaped the boundaries of the church-state relationship.
While the high court decides big cases every year, in recent years “they’re big cases with a political valence, and that has not always been the case,” says Linda Greenhouse, author of “Justice on the Brink.”
“People don’t read Supreme Court opinions. … What matters at the end of the day is what the court does,” she adds. And because of what the court has done in the past few years, “the public has measurably lost confidence in, and respect for, the Supreme Court.”
In the past, the Supreme Court maintained a high degree of public trust by making a habit of never straying too far from the middle. This didn’t mean avoiding consequential cases. It meant, in a broad sense, not rocking the country too far in one direction or another. Like blind Lady Justice holding her scales, it appeared to strive for balance.
Over the decades, that balance has been determined by a series of moderate “swing” justices. Among the most influential was Justice Anthony Kennedy. From the early 1990s to his retirement in 2018, he infuriated Democrats and Republicans alike with his unpredictability. His vote proved decisive in finding an individual right to bear arms, as well as an array of LGBTQ+ rights.
Retired Justice Anthony Kennedy arrives to hear President Joe Biden deliver the State of the Union at the Capitol March 7, 2024, in Washington. Justice Kennedy was a pivotal swing vote during his time on the Supreme Court.
The Supreme Courts of the past issued landmark rulings that still provided recourse for losers.
When the court legalized same-sex marriage in 2015, Justice Kennedy stressed in the majority opinion that the First Amendment still protected those with sincere religious objections. The court has since ruled consistently in favor of those accommodations.
“History suggests that when the court does that it’s able to protect its public standing,” says Aaron Tang, a professor at the University of California, Davis School of Law. After dropping to 53%, public trust in the court rose into the high 60s a few years later, according to Gallup.
“More big cases does not mean people are going to distrust the court,” he adds. But “in recent years the Supreme Court has been deciding big cases in ways that leave the losers with no other real options for protecting their interests.”
When the high court overturned Roe v. Wade, for example, women who needed an abortion but couldn’t travel to a state that still allowed the procedure had no options. Similarly, when the court expanded gun rights, it gave little guidance to lawmakers and lower courts as to what kind of gun control regulations would be permissible moving forward.
Lower courts and “judge shopping”
The recent decline in trust is not entirely of the justices’ making, experts say.
While the high court has become more conservative, lower federal courts have arguably become even more so. Mr. Trump appointed more federal judges in one term than any president in history, including just under a third of active appeals court judges and over a quarter of district court judges.
The result has been controversial lower court decisions requiring the Supreme Court’s attention. The high court will rule on several this summer, including a high-profile case concerning mifepristone, a widely used abortion pill.
An anti-abortion group filed the lawsuit in a district court where the case was almost certain to be heard by a Trump appointee with a track record of fighting contraception access. That judge issued an injunction, effectively pulling the pill off the market nationwide. His injunction was partially upheld by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. The panel included two other Trump appointees.
Plaintiffs have long brought lawsuits in friendlier courts. Legal challenges to Mr. Trump’s policies often came through the more liberal 9th Circuit, for example. But lower courts have more frequently been issuing rulings that affect the whole country.
“A lot of those cases the court has to take, it doesn’t have a lot of choice,” says Jonathan Adler, a professor at Case Western Reserve University School of Law. “But it does affect perceptions.”
“There would be fewer cases for the court to intervene in if there were fewer nationwide injunctions,” he adds.
The U.S. Judicial Conference, led by Chief Justice John Roberts, issued a proposal last month that would limit “judge shopping” and the ability to issue nationwide injunctions. But it’s unclear the degree to which federal courts will implement the policies.
Scrutiny over ethics
The steady output of major, conservative-friendly decisions has understandably made some on the left more suspicious of the court. But Professor Adler and many on the political right believe the sudden decline in trust is part of a concerted campaign to delegitimize the court because liberals dislike its rulings.
J. Scott Applewhite/AP/File
Associate Justice Clarence Thomas poses for a portrait at the Supreme Court in Washington Oct. 7, 2022.
This is especially the case with the ethical scandals over the past year. Justices Clarence Thomas and Samuel Alito in particular have faced media scrutiny over lavish gifts and vacations they received – but didn’t disclose – over the decades from right-wing donors and activists. While the gifts do not appear to have influenced how the justices voted, critics say the attention has helped manufacture a legitimacy crisis around the court. In the wake of the scandals, the court adopted its first ever formal ethics code. It is one that court watchers say will change little about its practices.
In an editorial last year, The Wall Street Journal described the ethics scandal around Justice Thomas as “really about setting up an apparatus that politicians can then use against the Justices.”
Ms. Greenhouse, who covered the court for three decades, agrees that court-watchers have also become more polarized, pointing specifically to criticism of what she calls a “quite reasonable” ruling to keep Mr. Trump on Colorado’s presidential primary ballot.
“We’re seeing the court be both a victim of polarization and a cause of polarization,” she adds. “People on either side of the street have lost the ability to see the court objectively or clearly.”
The view from the inside
The justices themselves have at times questioned the court’s impartiality. During oral arguments in the case to overturn Roe, Justice Sonia Sotomayor asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Five months later, distrust flooded the court itself when Politico published a leaked draft opinion of the decision overturning Roe. Speaking later that month, Justice Thomas described it as “kind of like infidelity.”
“When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally,” he added.
Three months after the court overturned Roe, Justice Elena Kagan, a member of the court’s liberal wing, used public appearances to argue that the court’s legitimacy was in danger.
“The thing that builds up reservoirs of public confidence is the court acting like a court and not acting like an extension of the political process,” she said at Salve Regina University in Newport, Rhode Island.
“People are rightly suspicious if one justice leaves the court or dies and another justice takes his or her place and all of sudden the law changes on you,” she said at another event in Montana.
“If the court doesn’t retain its legitimate function, I’m not sure who would take up that mantle,” said Chief Justice Roberts at an event in Colorado. “You don’t want the political branches telling you what the law is, and you don’t want public opinion to be the guide of what the appropriate decision is.”
A year later, though, Justice Kagan introduced Chief Justice Roberts at a legal event in May 2023, lauding him as “a consummate legal craftsman.”
The chief justice used his speech to reassure lawyers that the justices remain on good working terms.
“I am happy that I can continue to say that there has never been a voice raised in anger in our conference room,” he said.
“When I wander down the halls and see a colleague, I am always happy to have the chance to chat,” he added, before making a qualification. “Now, to be fair, there are many days where I don’t feel like walking down the halls.”
Rebuilding trust takes time
A year after overturning Roe, the high court faced another year of high-profile cases. Immigration, voting rights, religious freedom, and affirmative action were all on the docket. So were some surprises.
The court, predictably, ruled that a website designer could refuse services for same-sex weddings. But it also ruled against a Republican-led state in upholding a critical section of the Voting Rights Act. And it struck down a novel theory that would have given state legislatures unilateral authority to regulate federal elections. The court also struck down affirmative action. According to Gallup, about two in three Americans viewed the ruling as “mostly a good thing,” though most Americans of color did not.
A few months later, Gallup recorded that trust in the high court had ticked up to 49%, with a plurality of Americans (42%) viewing its ideology as “about right.”
That is still below where public trust has been as recently as 2020. And the justices are nearing the end of another blockbuster term that is certain to move that needle.
In one major case, being argued Thursday, Mr. Trump is claiming that he has absolute immunity from criminal prosecution for acts during his presidency. If the court rules in his favor, “that would leave no option for the public to hold any American president accountable for criminal wrongdoing,” says Professor Tang, author of “Supreme Hubris: How Overconfidence Is Destroying the Court – and How We Can Fix It.”
The abortion pill case could be another. Last year, medication abortion accounted for almost two-thirds of all abortions in the U.S. During oral arguments last month, the justices sounded skeptical that the case should have reached them at all.
If the court is going to rebuild public trust, “it will have to be rebuilt over time,” says Professor Tang. “The court will have to avoid more decisions that leave losing groups feeling like there’s no other choice but to assault the integrity of the Supreme Court.”
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