metamitya ·
PUBLISHED BY:
Bolch Judicial Institute
Duke Law School
by David F. Levi, Raymond J. Lohier Jr., Diane P. Wood and Jeffrey S. SuttonVol. 106 No. 2 (2022) | Losing faith? | Download PDF Version of Article
In June, Gallup released its annual survey on public confidence in the United States Supreme Court. The Court’s rating hit a historic low, with just 25 percent of Americans reporting “quite a lot” or “a great deal” of confidence in the Court, down from 36 percent in 2021. Data show that the Court is not the only institution in which the American people are losing confidence. Faith in institutions across the board — from organized religion and public schools to news media and big business — sank in 2022. And the Court remains the most trusted of the three branches of government. But this year marked the largest one-year drop in the Court’s rating since the poll began in 1973 and the third decrease in a row. Of note: The poll was conducted before the Court issued its major rulings for the 2022 term.
Polls are just one imperfect measure of public sentiment. And judges must administer justice impartially, without favor or bias or concern for which way the winds of public opinion may blow. But the rule of law largely depends on the willingness of ordinary people, as well as political actors, to abide by court rulings. How does declining faith in the courts affect respect for the judiciary as a whole? And what can judges do to help reverse the trend?
David F. Levi, director of the Bolch Judicial Institute and president of The American Law Institute, asked three judges of the United States Courts of Appeals — Judge Raymond J. Lohier Jr. (Second Circuit), Chief Judge Jeffrey S. Sutton (Sixth Circuit), and Judge Diane P. Wood (Seventh Circuit) — to consider these questions. Excerpts of their conversation, recorded in August 2022, follow. A podcast of the full discussion is available on The American Law Institute website at ali.org.
David F. Levi: I’ve known all of you for many years, some of us going way back in time. I asked you to have a conversation today about judging and the perception of the Supreme Court, because of the troubling poll numbers from the most recent Gallup poll about the loss of confidence by the American people in the Supreme Court.
I think it’s fair to say that the Court is in the middle of things right now. It’s received a lot of criticism from all sides of the political spectrum. From my point of view, the Court’s been under fairly continuous attack from conservatives at least since the 1970s, and it’s now under fairly continuous attack from progressives as well. Even well before the decisions of the last term, which were so consequential, there have been serious calls for court-packing, for jurisdiction stripping, for other kinds of devices that would either limit the Court or change its direction. From whatever vantage point these critical assessments are launched, the basic point that the critics seem to make is that the Court is a political — perhaps even partisan — institution, and that it is making decisions on a host of pressing issues facing the country that ought to be left to the political branches. And this characterization is intended as a challenge to the Court’s essential legitimacy: Why should nine people have that kind of authority to make political decisions? They presumably have that authority to make legal decisions, but the critics would say that many of these decisions aren’t legal.
So why don’t we start with why this is of concern. The reality is that there’s been a loss of confidence, as revealed by the Gallup polls. Should that concern us?
Jeffrey S. Sutton: Perhaps a few caveats are in order about the poll numbers. I’m skeptical about looking at one set of data points. I think to the extent that the Court should be concerned about public support, public credibility, one year doesn’t seem like a very good way to do it. In fact, one year of poll numbers seems much more likely to be used by the opponents of the Court’s decisions, as opposed to people trying to assess whether the Court is performing like a court.
Then we have another complication. The Court sometimes rightly does exactly what the public does not want. You could imagine a horrible murder in which the U.S. Supreme Court correctly reverses a conviction on legitimate constitutional grounds. In that setting, the public understandably would be agitated that the crime went unpunished. But I suspect the four of us would agree that that is a setting in which public disapproval would not legitimately undermine the Court’s credibility and reputation for principled decision-making. That’s why we have a Bill of Rights. Sometimes the federal courts are supposed to act in a counter-majoritarian way, which, no surprise, sometimes leaves the people frustrated by case outcomes.
If someone had told me 10 years ago the Court was going to overrule Roe and Casey, I would have expected a significant response — not because one …